Morales v. Zondo, Inc.

204 F.R.D. 50, 50 Fed. R. Serv. 3d 209, 2001 U.S. Dist. LEXIS 5679, 85 Fair Empl. Prac. Cas. (BNA) 1399, 2001 WL 474230
CourtDistrict Court, S.D. New York
DecidedMay 4, 2001
DocketNo. 00CIV3494(AGS)
StatusPublished
Cited by16 cases

This text of 204 F.R.D. 50 (Morales v. Zondo, 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
Morales v. Zondo, Inc., 204 F.R.D. 50, 50 Fed. R. Serv. 3d 209, 2001 U.S. Dist. LEXIS 5679, 85 Fair Empl. Prac. Cas. (BNA) 1399, 2001 WL 474230 (S.D.N.Y. 2001).

Opinion

MEMORANDUM ORDER

SCHWARTZ, District Judge.

In this action, plaintiff Ivelisse Morales (“plaintiff’) asserts claims for pregnancy and gender discrimination arising out of her employment with defendant Zondo, Inc. (“defendant”). Plaintiff now moves to compel discovery, for certain rulings on admissibility, and for sanctions against defendant’s counsel as a result of his conduct at the deposition of defendant’s principal. For the reasons set forth below, the motions are granted in part and denied in part.

I. Motion to Compel

A. Identity of Employees

Plaintiff requests that the court compel defendant to produce (i) the names of two individuals whose identities were redacted from two of defendant’s “Employee Warning Notices,” and (ii) the identity of present or former employees of defendant who were “excessively tardy, absent, or insubordinate, or who made excessive or unauthorized personal telephone calls, and any documents reflecting same.” (Memorandum of Law in Support of Plaintiffs Motion to Compel Discovery and for Costs/Sanctions (“Pl.Mem.”) at 13-14.)

The Court denies this request. The Court previously ruled at the pretrial conference on February 7, 2001 that, on grounds of relevance and the employees’ own privacy, defendant was not required to disclose the names of the two individuals who received “Employee Warning Notices.” The Court declines to alter that decision here. Plaintiff has failed to set forth any reason why the identity of these employees is relevant to the prosecution of her employment discrimination action. She claims their identities are necessary to prove disparate treatment by defendant and that plaintiffs discipline and termination were a pretext for discrimination. (PI. Mem. at 10.) However, the mere fact that certain employees have not been identified by name does not preclude an inquiry into the circumstances of their employment, and the possibility of disparate treatment. As defendant points out, plaintiff has been aware for several months of the number of instances in which other employees received warning notices during the time plaintiff was employed at the company, the nature of the violations which prompted the warnings, the language and content of those warn[52]*52ings. (Defendant’s Memorandum of Law in Opposition to Plaintiffs Motion to Compel Discovery and for Sanction (“Def.Mem.”) at 2.) Plaintiff does not indicate that she intends to contact either of the employees in question, depose them, or conduct any other form of discovery. Plaintiff also had the opportunity, prior to the close of discovery, to inquire into the employment and/or termination of such employees via interrogatory and at the deposition it conducted of defendant’s principal. (Deposition of Robert Eli-zondo dated Jan. 19, 2000 (“Elizondo Dep.”) at 140:22-143:10.)

On the same basis, the Court declines to order defendant to provide plaintiff with the identity of those employees who were “excessively tardy, absent, or insubordinate, or who made excessive or unauthorized personal telephone calls.” (PL Mem. at 2; Declaration in Support of Motion to Compel Discovery and for Sanctions (“Diederich Decl.”), Ex. 2.) However, to the extent not already provided, the Court directs defendant to furnish plaintiff with any documents reflecting such judgments, e.g. additional warning notices or disciplinary records, as such documents are clearly discoverable and may be relevant to plaintiffs case.

B. Defendant’s Counsel’s Fee Arrangement and Billing

Plaintiff also requests that the Court order defendant’s counsel to disclose (i) the fee arrangement between defendant and defendant’s counsel, and (ii) invoices of defendant’s counsel’s work to date. Plaintiff claims that such information is relevant to his request for attorney’s fees, and to any objection by defendant thereto, and the Court’s calculation of such fees. She also points out that the Court ordered plaintiffs counsel to disclose his fee arrangement. (Pl. Mem. at 14-15.)

The Court denies this request. The Court, at a conference, directed plaintiffs counsel to disclose his fee arrangement because (i) the Complaint requests attorney’s fees on each of plaintiffs three causes of action, and (ii) plaintiff effected a substitution of counsel in the middle of the case, and plaintiffs previous lawyers potentially have a claim for attorney’s fees. (Deposition of Ivelisse Morales dated Oct. 16, 2000 (“Pl.Dep.”), Ex. 6 to Diederich Decl., at 228-29.) Plaintiff has provided no reason why defendant’s fee arrangement is relevant.

II. Rulings on Admissibility

Plaintiff requests that the Court promptly rule on certain of defendant’s counsel’s objections as to the form of questions by plaintiffs counsel at the deposition of defendant’s principal, Robert Elizondo (“Elizondo”). In the alternative, plaintiff asks the Court to permit Elizondo to be redeposed. (PL Mem. at 16-17; Diederich Decl., Ex. 5.) Plaintiff states that the reason for making such request “is the admissibility of [Elizondo’s] answers at trial” and that he is “satisfied with Mr. Eli-zondo’s answers for the purposes of [defendant’s upcoming] summary judgment motion.” (PL Mem. at 17.) The Court denies this request;1 it will rule on the admissibility of the 24 answers at issue, if needed, on pretrial motions or at trial.

III. Motion for Sanctions

The Elizondo deposition was conducted by plaintiffs counsel, Michael D. Diederich, Jr., Esq. (“Diederich”), on January 19, 2001 at the office of defendant’s counsel, Eric M. Nelson, Esq. (“Nelson”). Plaintiff moves for sanctions, pursuant to Fed.R.Civ.P. 37 (“Rule 37”) and Fed.R.Civ.P. 30 (“Rule 30”), against Nelson for his alleged efforts to obstruct the disclosure of relevant information during the Elizondo deposition. (Pl. Mem. at 4, 17-19.) Plaintiff claims that Nelson’s conduct caused the deposition to extend twice as long as originally contemplated by the parties, and therefore involved twice the expense than was otherwise necessary. (Id. at 18.) In particular, plaintiff alleges that Nelson (i) refused to allow plaintiffs counsel access to the office telephone to call the Court regarding a dispute that emerged at the deposition; (ii) engaged in improper private conversa[53]*53tions with Elizondo, out of earshot of plaintiffs counsel; (iii) improperly “coached” Elizondo in order to indicate how Elizondo should answer a question, or to encourage him to state that he did not know the answer; (iv) improperly directed Elizondo not to answer certain questions; (v) engaged in colloquies concerning the matters on which the witness was being questioned, as well as certain irrelevant matters; and (vi) interrupted the deposition in order to inspect extraneous exhibits, and then reshuffled such exhibits to make it more difficult for plaintiffs counsel to refer to them. (Pl. Mem. at 4-9.) Defendant opposes such request for sanctions, and suggests that Diederich be sanctioned instead. (Def. Mem. at 14 — 16; Declaration of Eric M. Nelson dated Apr. 12, 2001 (“Nelson Deck”)). Defendant contends that (i) Diederich is equally to blame for the protracted nature of the deposition, (ii) Nelson’s statements on the deposition record, beyond objections as to form, were “prompted by Mr.

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204 F.R.D. 50, 50 Fed. R. Serv. 3d 209, 2001 U.S. Dist. LEXIS 5679, 85 Fair Empl. Prac. Cas. (BNA) 1399, 2001 WL 474230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morales-v-zondo-inc-nysd-2001.