Opinion · District Court, S.D. New York
Edwards v. Wilkie, Secretary of the Department of Veterans Affairs
Edwards v. Wilkie, Sec’y of the Dep’t of Veterans Affs., No. 1:16-cv-08031, UP10318433 (District Court, S.D. New York Nov. 13, 2019)
- Type
- Opinion
- Court
- District Court, S.D. New York
- Jurisdiction
- New York
- Date
- 2019-11-13
- Topic
- general
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x : DOLLAREATHA EDWARDS, : Plaintiff, : 16-CV-8031 (LTS) (OTW) : -against- : OPINION & ORDER : ROBERT WILKIE, Secretary of the Department : of Veterans Affairs : : Defendant. -------------------------------------------------------------x ONA T. WANG, United States Magistrate Judge: Plaintiff filed this motion for sanctions pursuant to Fed. R. Civ. P. 30 and 28 U.S.C. § 1927 on June 17, 2019.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
:
DOLLAREATHA EDWARDS,
:
Plaintiff, : 16-CV-8031 (LTS) (OTW)
:
-against- : OPINION & ORDER
:
ROBERT WILKIE, Secretary of the Department :
of Veterans Affairs :
:
Defendant.
-------------------------------------------------------------x
ONA T. WANG, United States Magistrate Judge:
Plaintiff filed this motion for sanctions pursuant to Fed. R. Civ. P. 30 and 28 U.S.C. § 1927
on June 17, 2019. (ECF 84). As a sanction for defense counsel’s alleged conduct at the depositions
of Jodie Jackson and Christopher Walls,1 Plaintiff seeks an order “to re-open discovery for the
limited basis to serve Defendants her requests for admissions and to conduct very narrow ESI
searches and production.” For the following reasons, Plaintiff’s motion for sanctions is DENIED.
I. BACKGROUND
A. Relevant Procedural History
Plaintiff filed this employment discrimination action on October 13, 2016, alleging, inter
alia, that Jackson and Walls discriminated against Plaintiff based on her disability (asthma and
rhinitis) and gender, and that they and others “intentionally created a hostile work environment
1 All other discovery has been closed since September 10, 2018; on October 4, 2018, the Court extended fact
discovery to November 9, 2018 for the sole purpose of completing the Jackson and Walls depositions, which had
been scheduled and re-scheduled since the summer of 2018. (ECF 55).
rife with retaliation and harassment that forced her to retire on disability.” (ECF 1). Judge Swain’s
initial scheduling order, entered on October 17, 2017, provided for fact discovery to be
completed by March 26, 2018, and expert discovery to be completed by May 26, 2018. (ECF 29).
The parties then received several extensions of fact discovery for various reasons, leading to
Judge Swain, entering an amended scheduling order setting new fact and expert discovery
deadlines of September 10, 2018 and November 14, 2018, respectively. (ECF 46). On the fact
discovery deadline, Plaintiff filed a letter request seeking an additional 60 days to complete
discovery, (ECF 47; ECF 48), which Defendant opposed the next day. (ECF 48). This opposition, in
turn, led to two additional letters from Plaintiff dated September 12 and 16. (ECF 49; ECF 50).
This matter was reassigned and referred to me for general pretrial supervision on September 17,
2018. (ECF 51). On October 4, 2018, I entered a new scheduling order which extended the fact
discovery deadline to November 9, 2018, “for the limited purpose of permitting the deposition
of Christopher Walls and the continued deposition of Jodie Jackson,” and setting an expert
discovery end date of November 30, 2018. (ECF 55.) In light of the previous history of the case,
Paragraphs 8 and 9 of this scheduling order provided as follows:
8. No Adjournment of Deadlines
The deadlines set forth in this Pre-Trial Scheduling Order will not
be adjourned except in the Court’s discretion upon good cause as
shown in a written application signed by counsel, stating whether
the other part(ies) consent, and served upon all parties. “Good
cause,” as used in this paragraph, does not include circumstances
within the control of counsel or the client.
9. Non-Compliance with This Order
In the event that any party fails to comply with this Pre-Trial
Scheduling Order, or is not prepared to go forward with trial on
the date scheduled, the Court may impose sanctions or take other
action as appropriate. Such sanctions and action may include
assessing costs and attorney’s fees, precluding evidence or
defenses, dismissing the action, granting judgment by default,
and/or other appropriate penalties.
The deadlines contained in ECF 55 came and went, and the case was stayed from
December 22, 2018 through January 25, 2019, due to the lapse in federal government funding.
(ECF 56; ECF 57). On February 14, 2019, Plaintiff again sought re-opening and extensions of
discovery, which ultimately led to yet another scheduling order extending discovery for the sole
purpose of completing the Jackson and Walls depositions. (See ECF 68). Those depositions were
completed on May 15 and 16, 2019, respectively.
B. The Instant Motion
Plaintiff argues that she was denied a fair examination of the deponents, based on the
“the sheer volume alone” of the objections, and also due to defense counsel’s “coaching” and
other allegedly “disrespectful and disruptive” conduct, including one instance of consultation on
an “illusory form of privilege” during a pending question during the Walls deposition. (ECF 87 at
8-17.)
Plaintiff argues that monetary sanctions are inadequate because defense counsel work
for the federal government, alleging that defense counsel “were fully aware that their conduct
may warrant sanctions but since they also are aware that the do not personally pay the costs,
and that whatever cost would be negligible to their employer, the government of the United
States . . .” [sic]. (ECF 85 at 17). Plaintiff argues, thus, that “re-opening discovery would clearly
serve a more substantively punitive purpose.” (Id. at 18).
For the reasons below, I find that no sanctions – whether monetary or otherwise – are
warranted on the record before me.
II. DISCUSSION
A. Legal Standard
Rule 30(c)(2) of the Federal Rules of Civil Procedure provides that “[a]n objection [during
a deposition] must be stated concisely in a nonargumentative and nonsuggestive manner. A
person may instruct a deponent not to answer only when necessary to preserve a privilege, to
enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed. R.
Civ. P. 30(c)(2). “It is noteworthy that the rule stops short of absolutely forbidding any
objections whatsoever except those that would be waived unless raised.” 8A Charles Alan
Wright et al., Federal Practice and Procedure Civil §2113 at 97 (2d ed. 1994); see Fed. R. Civ. P.
32(d)(3)(B) (timely and contemporaneous objections necessary for objections to form and
relating to matters that “might have been corrected at that time”).
Rule 30(d)(2) does not require a showing of bad faith but authorizes sanctions for
conduct that “impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ.
P. 30(d)(2). “The decision to impose sanctions is at the discretion of the court.” Cordero v. City
of New York, No. 15-CV-3436 (JBW) (CLP), 2017 WL 2116699
, at *5 (E.D.N.Y. May 12, 2017)
(analyzing sanctions under Rule 30(d)(2)).
Although not every improper objection warrants sanctions, sanctions are appropriate
under 28 U.S.C. § 1927
where the attorney’s conduct “essentially destroys a deposition.” See Cameron Indus., Inc. v. Mothers Work, Inc., No. 06-CV-1999 (BSJ) (HBP),2007 WL 1649856
, at *5 (S.D.N.Y. June 6, 2007) (quoting Am. Fun & Toy Creators, Inc. v. Gemmy Indus., Inc., No. 96-CV- 0799 (AGS) (JCF),1997 WL 482518
, at *8 (S.D.N.Y. Aug. 21, 1997)). An award of sanctions under28 U.S.C. § 1927
differs from an award under Rule 30(d)(2), however, because sanctions “under § 1927 require[ ] a clear showing of bad faith . . . ‘when the attorney’s actions are so completely without merit as to require the conclusion that they must have been taken for some improper purpose such as delay.’” Phillips v. Mfrs. Hanover Trust Co., No. 92-cv-8527 (KTD) (JCF),1994 WL 116078
at *2 (S.D.N.Y. Mar. 29, 1994) (quoting Oliveri v. Thompson,803 F.2d 1265, 1273
(2d Cir. 1986), cert. denied,480 U.S. 918
(1987)).
B. Analysis
Plaintiff argues that defense counsel’s frequent objections at the continuation of Ms.
Jackson’s deposition were not for a proper purpose, but rather “as a means to coach their
witnesses and to frustrate the flow of the deposition.” (ECF 85 at 9). At Mr. Walls’s deposition,
Plaintiff asserts that defense counsel again objected too frequently, engaged in colloquies
intended to coach the witness, repeatedly objected to Mr. Walls’s personal medical condition,
and once removed Mr. Walls from the deposition “during a pending question” to consult on a
privilege issue. (ECF 85, passim).
During Ms. Jackson’s deposition, Plaintiff asserts that Defendant “raised objections
approximately 80% of the time [sic].”2 (ECF 85 at 2). Further, Plaintiff alleges that during Mr.
Walls’s deposition, defense counsel “made objections or spoke at least 531 times.” (ECF 85 at
2 Upon a further review of the deposition and Plaintiff’s memorandum of law, the word “objection” appears on
133 out of 167 pages of Ms. Jackson’s transcript, or on 79.6% of the pages. (ECF 85 at 9). It is not the case that
defense counsel spent almost “80% of the time” of the deposition making objections. (Id. at 2).
10). Plaintiff asserts, without citing to any case law, that “the sheer volume alone without looking
at the context should warrant the imposition of sanctions.” (Id. at 9).
But context is important. Because counsel defending a deposition have an obligation to
make timely and contemporaneous objections under Rule 32, awarding sanctions based only on
the number of objections would have the perverse effect of rewarding – or at least condoning –
confusing and objectionable questions. Thus, “courts in the Second Circuit have declined to
impose sanctions based solely on voluminous, unwarranted, and argumentative objections
where opposing counsel was not prevented from completing the deposition.” Cordero, 2017 WL 2116699
, at *6, (citing Phillips,1994 WL 116078
, at *3 (holding that even when the attorney’s
conduct “clearly hampered the free flow of the deposition” and was “inappropriate and at times
even obnoxious,” sanctions did not issue)).
The Court has reviewed the transcripts of Ms. Jackson’s and Mr. Walls’s depositions and
finds that the objections, while numerous, were not inappropriate or unwarranted. The vast
majority of the objections were not speaking objections and did not involve colloquy; moreover,
defense counsel only instructed Mr. Walls not to answer one time. (ECF 88 at 15-16 (citing ECF
88-2 at 291:5-293:18)).
Most importantly, Plaintiff was able to complete both depositions, and has not identified
any material areas she sought to explore that she was prevented from exploring by defense
counsel’s objections. Even the most contentious areas in each witness’ depositions, referenced
and discussed by both Plaintiff and Defendant in their briefs, do not rise to the level of
sanctionable conduct, whether under Rule 30 or the stricter standard under § 1927.
1. Objections and Colloquy in the Jackson Deposition
In the Jackson deposition, the recurring colloquy occurred around lines of questioning
where counsel repeated allegations in the complaint and then asked the witness whether they
were aware of or agreed with the allegations. (See, e.g., ECF 88-1 at 199-200).3 In some instances,
counsel simply restated an allegation in the complaint without posing a question. (See, e.g., ECF
88-1 at 221,4 326). The other recurring objections involved counsel prefacing questions with a
statement, or asking the witness whether she had given particular answers at her previous
deposition session. (See, e.g. id. at 193-194,5 210, 215-217, 230). These questions were properly
objectionable as to form; in any event, the witness usually answered the question and the
deposition proceeded.
3 The instances cited here and in reference to the Walls deposition are not intended to be an exhaustive list of the
colloquies and objections, but are provided as examples only.
4 See, e.g., ECF 88-1 at 221:
Q: Now, was there ever a TMS coordinator in the Engineering Division during the time that Ms. Edwards
worked under Mr. Walls?
MS. MOHAN: Objection to form.
A: Not that I recall, but most departments have someone who manages TMS.
Q: So there wasn’t one at the time that you recall?
A: No, I didn’t say that.
Q: At the time you said you didn’t recall.
MS. MOHAN: Objection to form.
A: Yes.
Q: Is there a TMS manager now?
A: I don’t know.
Q: Ms. Edwards also alleges that she was the IGMIS housing manager.
MS. MOHAN: Objection to form. Is there a question or are you just going to testify?
5 See, e.g., ECF 88-1 at 193-94:
Q: Now, you did testify that you saw her [Plaintiff] with her son at some point?
A: Correct.
Q: But nothing else stood out outside of the observation?
A: No.
MS. MOHAN: I just want to object, you’re repeating the questions from last time. We’re just retreading old ground,
so I just want to put that objection on the record.
For example, one of the more problematic and lengthy exchanges at Ms. Jackson’s
deposition is illustrative:
Q: Now at some point you testified that Ms. Edwards performed
additional job functions that she should not have; is that true?
MS. MOHAN: Objection to form.
Q: At some point, Ms. Edwards basically, like you said, she was an
administrative officer at the VA. Did that position exist?
MS. MOHAN: Objection to form.
A: I don’t know.
MS. DOUD: The question should just be with a question, it shouldn’t be
prefaced with information.
MS. HAGAN: I don’t think you should explain how I conduct my
deposition. It isn’t an improper question. To you it’s improper, it doesn’t
mean it is. I think that you’re trying to break up the flow of the
deposition.
If you have problems with it, that’s your problem. But I can ask Ms.
Walls, I’m sorry, Ms. Jackson, anything I want to as long as it’s relevant.
So could you please not interrupt my questioning again.
MS. DOUD: We’re allowed to object, and we will continue to do so. The
objection is that every question you’re asking is prefaced by just
speaking on the record. Special, stop.
MS. HAGAN: Don’t yell at me. Excuse me, I will call the judge if I have to,
because there’s no grounds for your objection. You’re not stating any
basis for the objection. I’m going to ask Ms. Jackson the same question
again.
MS. DOUD: I was in the middle of explaining the objection when you
interrupted me.
MS. HAGAN: This is a speaking objection and they’re prohibited.
Q: I was saying before, the objection is on the record. I’m going to ask
the question again and you can answer the question unless directed not
to, and if so, we will call the judge. Now, again, does the administrative
officer position exist today at the VA?
A: I do not know.
Q: Has anyone acted in that capacity, to your knowledge?
A: No.
(ECF 88-1 at 215-17 (emphases added)). Here, notwithstanding considerable colloquy and
disagreement among counsel, the questions asked after the objections were clearer, and the
witness was able to answer them.
2. Objections and Colloquy in the Walls Deposition
Mr. Walls’s deposition was similar. Indeed, there were several objections and colloquy
earlier in the Walls deposition, (see, e.g. ECF 88-2 at 36, 46, 50, 61, 63, 65, 69), but when Plaintiff’s
counsel then called the Court concerning the Jackson deposition the previous day,6 she stated
that she did not have any disputes concerning the Walls deposition. (ECF 88-2 at 77 (emphases
added)).7 Throughout the Walls deposition, Plaintiff’s counsel also continued her practice of
restating allegations in the complaint, which led to numerous warranted objections to form; in
6 See ECF 76.
7 JUDGE WANG: Stop, this is not the time to be arguing about what happened at the deposition yesterday. You
raised these issues in your letter. The Court is considering them. The Court may put you on a briefing schedule
because I don’t have the benefit of th4e entire transcripts nor do you.
. . .
Do you have an existing dispute at this moment that concerns the deposition that is proceeding right now?
MS. HAGAN: No, I do not.
any event, the witness answered the questions. (See, e.g., ECF 88-2 at 103-104, 8 106-107,9 123-
25, 134,10 159-6111).
8 Q: Right. Now, Ms. Edwards alleges that you would not meet with her and discuss her performance with her.
MS. DOUD: Objection. That’s not a question, Special.
Q: Can you answer?
MS. DOUD: You need to ask him a question for him to answer a question.
MS. HAGAN: I’m noting that counsel is engaging in speaking objections again.
Q: Again, Ms. Edwards is alleging that you refused to meet with her to discuss her performance; is that true?
A: No.
9 Q: Ms. Edwards alleges that you retaliated against her when you gave her a fully successful rating. Is that
true?
MS. DOUD: Objection.
A: No.
Q: You’re saying that you didn’t retaliate against her; is that right?
MS. DOUD: Objection.
A: I did not retaliate.
10 Q: So now Ms. Edwards alleges that she was administrative officer during that time and you took all those
functions away from her.
A: During what time?
Q: During the time you were her supervisor.
MS. DOUD: Objection.
MS. HAGAN: On what grounds?
MS.DOUD: That’s not a question.
MS. HAGAN: I’m going to note again that Ms. Doud is engaging in improper objections.
MS. DOUD: I made an objection, and then you asked me the basis, and I said the basis was that you did not ask a
question.
MS. HAGAN: Your objection is noted, and that is not permissible. And so I’m going to note that it is an
impermissible objection.
11 Q: Ms. Edwards alleges that you would not assign her any work; is that true?
MS. DOUD: Objection.
A: I don’t know if she alleges that.
Q: No, I’m saying, I’m asking you if it’s true that you would not assign her work.
MS. DOUD: Objection.
A: I don’t think so.
Q: Okay, could you explain?
MS. DOUD: Objection.
Q: You said you don’t think so.
A: I’m really confused. Can [you] restart that question again, please?
Q: Ms. Edwards alleges that you refused to assign her work; is that true?
MS. DOUD: Objection.
A: No.
Q: So what happened then?
MS. DOUD: Objection.
A: Again, I don’t recall what she was doing, what I gave her or not gave her.
Q: But you’re also saying that it’s not true they you refused to do so?
A: I didn’t say I’m not giving her work.
Q: So what did you say instead?
Beyond the number of objections at the Walls deposition, Plaintiff complains specifically
about two other incidents: 1) counsel’s objections during questioning about Mr. Walls’s asthma,
(see ECF 88-2 at 89-95 and 291-94), and 2) a break to consult with counsel when questioning
turned to a reprimand of Mr. Walls that was unrelated to Plaintiff’s complaint. (See ECF 88-2 at
125-29). With both areas of questioning, the witness, not counsel, expressed reservation about
answering particular questions about his asthma treatment regimen and the “circumstances
behind the reprimand” he received in 2014. (ECF 88-2 at 125). Even if those lines of questioning
were relevant and appropriate, the Court has reviewed the Walls deposition and finds that
Plaintiff was able to explore both issues with the witness and that the witness answered the
questions posed, notwithstanding counsel’s objections. See Quinio v. Aala, No. 15-cv-4912 (PKC)
(SJB), 2017 WL 8646668
, at *4 (E.D.N.Y. Dec. 21, 2017) (finding that even where “the instruction
was not proper. . . the conduct is not sanctionable, in light of the fact that the question was
answered, on that occasion and at other times during the deposition. Again, there was no
material frustration or delay”).
Specifically, the witness answered at least 19 distinct questions regarding his asthma
history, with about half of them answered after counsel’s colloquies about the relevance of the
MS. DOUD: Objection.
A: To what?
Q: What did you decide to do with Ms. Edwards?
MS. DOUD: Objection.
A: I don’t remember.
Q: You mean to tell me that you supervised Ms. Edwards from November 2015 to August 2016, that Ms.
Edwards filed a lawsuit, filed EEO complaints, and then after she stopped being a locksmith, you don’t know what
she was doing?
MS. DOUD: Objection.
A: I do not remember.
Q: You don’t remember?
MS. DOUD: Objection.
A: Right.
line of questioning. Id.
Similarly, after the witness asked if he had to answer questions regarding
his reprimand, his counsel did take a break while a question was pending, but immediately
identified the privilege concern as the reason for the break. See Local Civ. R. 30.4 (attorney may
not initiate private conference with deponent while a question is pending, “except for the
purpose of determining whether a privilege should be asserted”). After the witness returned, he
answered no fewer than 20 questions regarding the circumstances surrounding his reprimand,
even as the answers showed that the circumstances of that incident were not related to the
complaint or plaintiff’s allegations. (See ECF 88-2 at 125-29). Although Plaintiff claims that the
witness was “clearly coached on what to say,” (ECF 85 at 17), she does not suggest – nor is there
any indication from the transcript – that the answers were untruthful or unclear in any way. (Id.
at 17.)
III. CONCLUSION
Most of the objections in both depositions were simply stated as “objection” or
“objection to form.” To the extent there was colloquy between counsel, the language used was
civil, the objections were not made in bad faith, and the witness answered the questions, even
in instances where the questions were not clear or counsel argued that the questions were not
relevant. Plaintiff has not identified any objections or colloquy that, upon review, resulted in the
witness failing to answer a question that they should have answered. Accordingly, Plaintiff’s
motion for sanctions is denied.
SO ORDERED.
s/ Ona T. Wang
Dated: New York, New York Ona T. Wang
November 12, 2019 United States Magistrate Judge