DocketNumber: Civil Action No. 16–1199 (JDB)
Citation Numbers: 292 F. Supp. 3d 272
Judges: Bates
Filed Date: 2/12/2018
Status: Precedential
Modified Date: 7/25/2022
Before the Court is plaintiff's motion to compel documents and deposition testimony from third-party witnesses Dr. Arthur Holmberg, Michael Savino, and Stephen Fox. See Pl.'s Mot. to Compel and to Extend the Deadline for Dispositive Mots. [ECF No. 150] ("Pl.'s Mot.").
I. The Deposition of Dr. Holmberg
Plaintiff first seeks an order directing Dr. Holmberg to appear in New York City for his deposition on a set date not later than February 20, 2018. See Pl.'s Mot. at 2; Pl.'s Reply at 2. The Court previously ordered Dr. Holmberg to appear for a deposition on January 4, 2018. See Order [ECF No. 142]. Dr. Holmberg has since postponed that deposition three times, citing factors such as a dog bite, a fall, inclement weather, and the need to be near his patients. Most recently, Dr. Holmberg postponed his deposition because he needed time to retain an attorney and because he was unwilling to travel from his home in Greenwich, Connecticut to plaintiff's counsel's offices in New York City.
None of these grounds is sufficient to continue to delay Dr. Holmberg's deposition. Federal Rule of Civil Procedure 45(c) provides that "[a] subpoena may command a person to attend a ... deposition only ... within 100 miles of where the person resides, is employed, or regularly transacts business in person," Fed. R. Civ. P. 45(c)(1)(A), and a court "must" quash or modify a subpoena that commands a witness to travel further, Fed. R. Civ. P. 45(d)(3)(A)(ii). But here, the distance between Greenwich and New York City is less than 30 miles, and Dr. Holmberg has not identified any reason that the trip would otherwise impose "undue burden or expense" on him. Fed. R. Civ. P. 45(d)(1) ; see Guy v. Vilsack,
Thus, the Court will grant plaintiff's motion and order Dr. Holmberg to appear at the offices of Fox Rothschild LLP in New York City for a deposition of four hours or less on Monday, February 19, 2018.
II. Document Requests Directed to Mr. Savino and Mr. Fox
Next, plaintiff seeks an order requiring Mr. Savino and Mr. Fox to comply with various document requests made in subpoenas that issued on November 29, 2017. See Pl.'s Mot. at 3-5. Mr. Savino testified that, in response to plaintiff's ten *275distinct requests, he ran only two searches of his email account. See Ex. B to Pl.'s Mot. [ECF No. 150-5] ("Savino Dep.") at 172-73. And Mr. Fox, who was served with seven distinct document requests, produced no documents at all. See Pl.'s Mot. at 4; Fox Decl. at 2 (not contesting this fact).
The two witnesses have offered various explanations for their failure to comply with plaintiff's document requests. At his deposition, Mr. Savino cited a nondisclosure agreement as the basis for his failure to produce certain documents, see Ex. B to Pl.'s Mot. [ECF No. 150-5] ("Savino Dep.") at 16-18, 92-93, 219, and testified that he simply "overlooked" other responsive documents, see
Again, Rule 45 clearly lays out the proper procedure for objecting to document requests made in a third-party subpoena:
A person commanded to produce documents ... may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials .... The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.
Fed. R. Civ. P. 45(d)(2)(B). Once a third-party witness serves such an objection, the party seeking the information may move for an order "compelling production," and production "may be required only as directed in the order."
As neither witness disputes, Mr. Savino and Mr. Fox did not follow these procedures here. Instead, both witnesses appeared at their depositions with less than all of (or, in Mr. Fox's case, none of) the requested documents and asserted the various objections discussed above. This is not the proper way to object to a request for the production of documents. And in any case, the untimely objections that the witnesses now assert are insufficient to justify their failure to comply with the subpoenas. For example, as plaintiff points out, see Pl.'s Reply at 1, this Court has already ruled that "[a] non-disclosure agreement itself does not confer a legal privilege from discovery." See Mem. Op. & Order [ECF No. 116] at 3. Nor is an unspecified "conflict of interest" or a witness's failure to timely retain an attorney an adequate excuse. Moreover, if Mr. Fox-who is himself an attorney-believes that some of the documents plaintiff seeks are covered by the attorney-client privilege, he must do as Rule 45 instructs: he must make a list of each responsive document that he believes is subject to the privilege and state "the nature of [each] withheld document[ ] ... in a manner that, without revealing information itself privileged *276or protected, will enable the parties to assess the claim." Fed. R. Civ. P. 45(e)(2)(A). Unless and until he does this, he must comply with plaintiff's document requests.
For the foregoing reasons, the Court will require Mr. Savino and Mr. Fox to comply with plaintiff's document requests by not later than Monday, February 19, at 1:00 p.m. And like Dr. Holmberg, Mr. Savino and Mr. Fox are hereby placed on notice that failure to comply fully with plaintiff's requests-that is, to search for each and every document in the witness's possession that is responsive to each and every request-will expose them to sanctions, up to and including contempt. See Fed. R. Civ. P. 45(g).
III. Additional Four-Hour Deposition of Mr. Fox
Finally, plaintiff claims that Mr. Fox generally refused to give meaningful answers to the questions he was asked at his deposition and that, as a result, an additional four-hour deposition of Mr. Fox is required. The Court will grant this request as well.
At his deposition, Mr. Fox withheld testimony on various grounds, including his fear that plaintiff would seek to interfere with his efforts to collect on a debt, see Fox Dep. at 45, and the attorney-client privilege, see
For the foregoing reasons, the Court will order Mr. Fox to appear at the offices of Fox Rothschild LLP on Tuesday, February 20, 2018 for an additional four-hour deposition. At that deposition, Mr. Fox shall not refuse to answer any question except on the basis of a privilege (or one of the other grounds listed in Federal Rule of Civil Procedure 30(c)(2) ). The Court will also deny Mr. Fox's request for an in camera discussion of the privilege issues he believes are raised by plaintiff's questions. Instead, the Court will require Mr. Fox to serve on all parties, and file with the Court, any objection to any question that he refused to answer at his prior deposition by not later than Monday, February 19, 2018 at 1:00 p.m. And again, failure to comply with any of the foregoing directions may expose Mr. Fox to sanctions, up to and including contempt. See Fed. R. Civ. P. 45(g).
IV. Conclusion
For the foregoing reasons, plaintiff's motion to compel will be GRANTED . A separate order will issue on this date.
The Court extended the deadline for dispositive motions by minute order on January 25, 2018.
In its January 25 minute order, the Court directed the witnesses to file their responses to plaintiff's motion, if any, by not later than February 1, 2018. On February 1, the Court received by email [152] an "affirmation" by Mr. Savino ("Savino Decl.") and [153] a declaration by Mr. Fox ("Fox Decl."), which stated both witnesses' grounds for opposing the motion. Then, on February 2, the Court received the following email from Dr. Holmberg:
"Dear Judge Bates:
My name is Arthur Holmberg, MD and this email is written in partial opposition to the motion of the plaintiff to compel my testimony. I am checking on the dates of availability of my attorney to make sure we are both available on a specific day. I am available on February 15, 16 or 19 for the less than half day requested. In addition, I am verifying that my attorney can provide internet video so I may be in the Greenwich, CT area for the deposition.
Subject to the above, I will be available for the internet deposition.
Sincerely,
Arthur Holmberg, MD"
Though plaintiff suggests that the deposition take place the following day, February 20, see Pl.'s Reply at 2, the Court will once again accommodate Dr. Holmberg's schedule by ordering him to appear for his deposition on February 19-one of the three dates he listed in his email to the Court.