Baker v. Ace Advertisers' Service, Inc.

134 F.R.D. 65, 1991 WL 12447
CourtDistrict Court, S.D. New York
DecidedFebruary 1, 1991
DocketNo. 87 Civ. 2697 (KMW)
StatusPublished
Cited by8 cases

This text of 134 F.R.D. 65 (Baker v. Ace Advertisers' Service, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. Ace Advertisers' Service, Inc., 134 F.R.D. 65, 1991 WL 12447 (S.D.N.Y. 1991).

Opinion

OPINION AND ORDER

SHARON E. GRUBIN, United States Magistrate Judge:

Plaintiff brings this case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging termination of employment because of racial discrimination. Currently before the Court is a motion by defendants for sanctions pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure because of plaintiff’s conduct with respect to the transcript of his deposition. Defendants seek dismissal under Rule 37(b)(2)(C), but because the sanction of dismissal should be used in only the rarest circumstances, because plaintiff is [66]*66pro se and because I believe another efficacious but less severe sanction will better serve the purposes of the discovery process, I grant defendants’ motion to the extent set out below.

BACKGROUND

I.

Plaintiff, Alvin Harvey Baker, was granted leave to proceed in forma pauper-is and his pro se complaint was filed on April 22, 1987. The defendants were served on May 27, 1987 and filed their answer on June 15, 1987. Plaintiff filed an application for appointment of counsel which was denied by the Honorable John M. Cannella, to whom this case was then assigned, on August 20, 1987 without prejudice to renewal. The case was then referred to me on August 25, 1987 for general pretrial purposes. One week later, at 10:00 a.m. on September 2, I received a telephone call from the office of defendants’ attorney. Mr. Baker had appeared there because defendants were scheduled to produce documents to him and he was scheduled to be deposed. Plaintiff, however, refused to be deposed. During the telephone conference plaintiff stated he had not received notice that the deposition, which had been rescheduled from an earlier date, was to occur that day, and he wanted an opportunity first to review defendants’ documents. I directed that plaintiff should have the morning to review the documents and that his deposition should commence at 1:00 p.m. Alternatively, I told Mr. Baker that he could adjourn the deposition and reschedule it if he had not received notice of it, but that if it later were revealed that he in fact had received defendants’ notice of deposition and defendants’ counsel’s rescheduling letter, both of which he claimed not to have received, he might be subject to sanctions. Mr. Baker decided to choose the first option and proceed with the deposition that afternoon. I then explained to Mr. Baker, in view of his pro se status and certain remarks he had made during the telephone conference, that at the deposition he would be required to answer all questions asked except those he did not understand. I explained that if he objected to a question, he could state that he objected, but that he was still to answer; the objection would be considered by the court before the testimony could be used at trial. I further told him that if he did not understand what was being asked at any time, he should state that he could not answer for that reason, and defendants’ attorney would be required to ask the question in another way. The deposition went forward that afternoon but was adjourned after 3V2 hours apparently at the request of the court reporter who had become fatigued. It was continued at 1:00 p.m. the following day when, again, a call was placed to me because Mr. Baker had refused to answer a question posed by defendants’ attorney. Mr. Baker had been asked to state what occurred at a meeting between him and the defendants on the day he had been fired, and he had refused to answer because the question had already been “adjudicated” at an administrative hearing. I again explained to plaintiff that even when he objected to a question, he was to state his objection but then give his answer; if the objection were valid, his answer would not be admitted into evidence at trial.1 At the end of the second day, Mr. Baker told defendants’ attorney that he wished to speak with me again prior to submitting to further questioning and a telephone conference was then scheduled for September 8, 1987. During that telephone conference defendants’ counsel said he needed one and one-half to two more hours to complete the deposition. In light of our discussion during this telephone call concerning the mechanics of the deposition and other aspects of discovery which would apparently require rulings and explanation from the court to proceed, I told the parties to defer further discovery until we had a conference in court the following week. At that conference, I ruled that a third deposition session would be permitted but would be limited to two hours. I made various additional rulings with respect to documents and information requested by plaintiff, and the [67]*67parties thereafter embarked on further discovery. However, it quickly became clear that if the case were ever going to be prepared properly for trial, plaintiff would need an attorney. Plaintiff had been sending correspondence almost daily to defendants’ counsel and to me with demands for information from the defendants and accusations about their conduct, and defendants’ counsel had indicated an intention to move for summary judgment. Accordingly, on November 23, 1987 I issued an order granting plaintiff’s requests for appointment of counsel, and staying all discovery pending counsel’s appointment. Thereafter, Eileen N. Nadelson, Esq. of the firm of Traub & Lesser accepted representation of plaintiff and submitted a notice of appearance on April 6, 1988.

After a pretrial conference was held and a scheduling order issued, the parties engaged in further discovery and counsel agreed to schedule the continuation of plaintiff’s deposition for August 2, 1988. However, on July 8, 1988, pursuant to both attorneys’ request, a telephone conference was held. Mr. Baker’s counsel had received back from Mr. Baker the original transcripts of his two prior deposition sessions which had been forwarded to him for correction and signature. Mr. Baker had “corrected” the transcripts by drawing a line through every answer or statement attributed to him therein and by writing in the margin next to every answer “Plaintiff [or “I”] never gave this answer.” He had also indicated next to some of the questions that “This question was never asked.” Counsel were at a loss for how to proceed and were requesting assistance from me. I told plaintiffs attorney that she should thoroughly advise Mr. Baker as to the scope and appropriateness of “corrections.” Ms. Nadelson indicated that she had already spoken to Mr. Baker but would do so again. I told defendants’ attorney to continue with the deposition as scheduled on August 2. If some application were thereafter needed, he would be free to bring one on. On July 27, 1988, pursuant to plaintiffs counsel’s request, another telephone conference was held. Ms. Nadelson told me that she had spoken with Mr. Baker but he would not follow her advice and that she was not certain that Mr. Baker would appear for the continued deposition without a court order. I issued an order directing plaintiff to appear for the scheduled deposition.

The deposition was eventually completed, and the parties progressed with other remaining discovery. On September 29, 1988, Mr. Baker sent a letter to Chief Judge Brieant of this Court “to make a formal complaint” against defendants’ attorneys on account of the “fraudulent, deceptive lies and multiple distortions” contained in the deposition transcripts.

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Cite This Page — Counsel Stack

Bluebook (online)
134 F.R.D. 65, 1991 WL 12447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-ace-advertisers-service-inc-nysd-1991.