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Gavrity v. City of New York

United States District Court for the Eastern District of New York

September 19, 2014, Decided; September 19, 2014, Filed

12-CV-6004 (KAM) (VMS)

Opinion

MEMORANDUM AND ORDER

Scanlon, Vera M., United States Magistrate Judge:

Plaintiff Vincenzo Gavrity ("Plaintiff") brings this action against Defendants City of New York, the New York City Police Department, Lieutenant Richard Perullo, Sergeant Joseph Durante, Police Officer Jose Tabora, Police Officer David Figueroa, Police Officer Timothy Neiss and Police [*2]  Officer Jan Folvarsky ("Defendants") under 42 U.S.C. § 1983, alleging, inter alia, that Defendants falsely arrested Plaintiff, used excessive force and deprived Plaintiff of adequate medical care relating to injuries he suffered during the arrest. Docket No. 26.

Before the Court is Plaintiff's motion asking that Defendants' counsel Arthur Larkin and Melissa Wachs be sanctioned for alleged misconduct during the deposition of Defendant Durante, and that Mr. Larkin and Ms. Wachs be ordered to pay the attorneys' fees and costs that Plaintiff incurred as a result. Docket Nos. 37, 41. Defendants opposed and cross-moved for sanctions of their own, also for alleged deposition misconduct on the part of Plaintiff's counsel Elizabeth Wolstein. Docket No. 40. In addition to costs and fees, both Parties seek other relief as the Court deems necessary. Docket Nos. 37, 40-41.

In this Memorandum and Order, I describe and discuss the alleged misconduct that occurred during Defendant Durante's deposition. For the following reasons, I grant in part and deny in part Plaintiff's motion and deny Defendants' motion.1

I. The Videotape Incident

On January 6, 2014, Ms. Wolstein began her deposition of Defendant Durante at 9:40 a.m. Docket No. 37. Ms. Wachs was present to defend the deposition. Id. At some point that morning, Ms. Wolstein stated her intention to show Defendant Durante videotapes containing footage relevant to the alleged incident, which Plaintiff had produced in discovery many months earlier. Id. Ms. Wachs contacted Mr. Larkin, one of her supervisors in the New York City Law Department, to alert him to the impending videotape screening because Ms. Wachs was concerned that Defendant Durante had never been shown the videotapes during deposition preparation. Id. Mr. Larkin, who had not made an appearance in the action prior to that day, came to the deposition at 11:55 a.m., and both Mr. Larkin and Ms. Wachs challenged Ms. Wolstein's showing of the video to Defendant Durante. [*4]  Id.; Docket No. 36 (Mr. Larkin's 1/6/2014 notice of appearance).

Mr. Larkin's conduct was improper. Only one attorney may lodge objections during a deposition. See, e.g., U.S. v. Frayer, 9 F.3d 1367, 1374 (8th Cir. 1993) (affirming the district court's ruling that the defense attorneys should not "double team" a witness with respect to objections, that only one co-defendant's counsel could lodge objections during a cross-examination, and that other counsel who wished to lodge an objection should confer with the attorney designated to defend during cross-examination); Fed. R. Civ. P. 30(c) ("The examination and cross-examination of a deponent proceed as they would at trial . . . ."). Here, Ms. Wachs was the attorney defending Defendant Durante's deposition, and Mr. Larkin should not have joined the discussion on the record. Yet he did, with the following exchange:

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2014 U.S. Dist. LEXIS 132035 *; 2014 WL 4678027

VINCENZO GAVRITY, Plaintiff, -against- CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOSE TABORA, LIEUTENANT RICHARD PERULLO, SERGEANT JOSEPH DURANTE, POLICE OFFICER DAVID FIGUEROA, POLICE OFFICER TIMOTHY NEISS, POLICE OFFICER JAN FOLVARSKY, and JOHN DOE DEFENDANTS 1-5, Defendants.

CORE TERMS

deposition, sanctions, videotape, questions, Defendants', video, deponent, reasons, deposition transcript, disclosure, police officer, bad faith, interruptions, conferences, answers, factors, appearance, misconduct, argues, pages, rude