Johnson v. Wayne Manor Apartments

152 F.R.D. 56, 28 Fed. R. Serv. 3d 508, 1993 U.S. Dist. LEXIS 16802, 1993 WL 513513
District Court, E.D. Pennsylvania·Decided November 29, 1993·No. No. 93-CV-1524·Published·Cited by 8 cases

Opinion

MEMORANDUM AND ORDER

JOYNER, District Judge.

This case is once again before this Court upon motion of the plaintiff to compel the depositions of the defendants’ representatives and employees, David Goldstein and Elmer Mercado and for the imposition of sanctions against the defendants for terminating the previously scheduled depositions of those individuals without substantial justification. Defendants have responded to that motion and have cross-filed a motion for protective order pursuant to Fed.R.Civ.P. 26. In accordance with the rationale set forth in the paragraphs which follow, the plaintiffs motion shall be granted while the defendants’ motion is denied.

I. STATEMENT OF RELEVANT FACTS

This is essentially a negligence action which arose in July, 1991 when the plaintiff, Heather Johnson, was sexually assaulted and robbed in the bedroom of the apartment which she was renting at the defendant Wayne Manor Apartments. According to the allegations contained in the complaint, the plaintiffs unknown assailant gained entry to her apartment in the early morning hours of July 13, 1991 by scaling the fire tower adjacent to her kitchen window and slicing through the window screen. Unlike most of the other apartments in plaintiffs building which were equipped with security bars on those windows to which access was possible from either the ground or the fire tower, plaintiffs apartment windows were not barred and it is on the basis of this omission that it is alleged that defendants breached the duty of care which they voluntarily assumed to provide plaintiff with an apartment in a secured building.

On November 8, 1993, plaintiffs counsel sought to take the deposition of David Gold-stein, the owner and sole proprietor of both the Wayne Manor Apartments and the Lin-[58] coin Management Company. At the inception of the deposition and in reliance upon the July 29, 1993 decision by Judge Gawthrop of this bench in the case of Hall v. Clifton Precision, 150 F.R.D. 525 (E.D.Pa.1993), plaintiffs counsel instructed the witness to ask him, rather than his attorney, for any clarifications, definitions or explanations of any words, questions or documents presented during the course of the deposition. Plaintiffs counsel further advised Mr. Gold-stein that under Judge Gawthrop’s decision, he was no longer permitted to consult with counsel at any time during the deposition, except where the anticipated answer to a question would involve disclosing material protected by the attorney-client privilege.

By way of her motion now, Ms. Johnson alleges that notwithstanding her counsel’s instructions and adherence to the guidelines set forth in the Hall decision, defense counsel several times objected to plaintiffs counsel’s questions in such a way as to suggest answers to and coach his client into giving testimony which was favorable to him and directed Mr. Goldstein to not answer certain of the questions posed. Insofar as Mr. O’Brien thereafter unilaterally terminated Mr. Goldstein’s deposition and refused to permit the deposition of Mr. Mercado to go forward, Plaintiff submits that sanctions are appropriately imposed against the defendants and their attorney and asks that these witnesses be ordered to re-submit to deposition. Plaintiff additionally requests that the deadline for discovery in this ease be extended for a minimum period of 60 days so as to enable these depositions to be rescheduled to a mutually convenient time and place.

For their part, Defendants submit that their counsel’s actions were justified since the questions posed were of a misleading and inaccurate nature. Defendants ask that this Court enter an order decreeing that their counsel “may object to questions that are misleading or contain facts not in evidence or facts that are in error such as the question relating to bars on the rental office and bars being purchased when that is not so.”

II. DISCUSSION

As was true in Hall, the ease at bar involves the interplay of several of the Federal Rules of Civil Procedure governing discovery. Fed.R.Civ.P. 26, entitled General Provisions Governing Discovery, permits discovery concerning any unprivileged matter which is relevant to the subject matter of the action to be obtained by a wide variety of methods such as depositions, interrogatories, requests for admissions, etc. Under Rule 26(f), the court is empowered to “direct the attorneys for the parties to appear before it for a conference on the subject of discovery ...” and, after the discovery conference has been held, “to enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, setting limitations on discovery ... and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action ...”

Fed.R.Civ.P. 30, in turn, governs the taking of depositions and generally allows “any party [to] take the testimony of any person, including a party, by deposition upon oral examination.” Subsections (c) and (d) of that rule provide, in pertinent part:

(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and cross-examination of witnesses may proceed as permitted at trial under the provisions of the Federal Rules of Evidence.... All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the depositions. Evidence objected to shall be taken subject to the objections.
(d) Motion to Terminate or Limit Examination. At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may [59] order the officer conducting the deposition to cease forthwith from taking the deposition or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c)____ (emphasis supplied)

Rule 26(c) outlines the standards to be applied where a motion for a protective order is being sought:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...

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Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 28 Fed. R. Serv. 3d 508, 1993 U.S. Dist. LEXIS 16802, 1993 WL 513513 (E.D. Pa. 1993).

152 F.R.D. 56 (Johnson v. Wayne Manor Apartments) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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