Summary
reversing trial court's protective order prohibiting the deposition of a seven-year-old non-party because the contention that the child would become "unnecessarily upset" if deposed was speculative and defense counsel had assured the court that he would depose the child "cautiously and sensitively"
Summary of this case from Chen v. Lingting YeOpinion
08-CV-3518 (KAM) (RML).
August 3, 2010
MEMORANDUM ORDER
The City of New York, Police Officer William Glenn, and Police Officer Andrew Ugbomah (together, "defendants") have objected to Magistrate Judge Robert M. Levy's May 14, 2010 Order denying defendants' motion for reconsideration of his April 5, 2010 ruling ("April 5 Order"), which granted plaintiffs' motion for a protective order and precluded defendants from conducting a deposition of infant plaintiff J.G. Because the motion for reconsideration tolled the period for timely objections to Judge Levy's April 5 Order, the court construes defendants' instant motion as an objection to the underlying April 5 Order. While it is clear that Judge Levy has thoughtfully considered an appropriate balance between the interests of the two parties, the court has reviewed the April 5 Order and the parties' papers and, for the reasons set forth below, respectfully finds clear error in the decision. Accordingly, Judge Levy's April 5 Order granting plaintiffs' protective order is overruled and plaintifs' motion for a protective order is denied.
A party must file objections to a magistrate judge's order within fourteen days of being served with a copy. See Fed.R.Civ.P. 72(a). Here, defendants timely moved for reconsideration following Judge Levy's April 5 Order. Accordingly, the time period for objections to the April 5 Order was tolled until May 14, 2010, when Judge Levy denied defendants' motion for reconsideration. See, e.g., Fox Industries, Inc. v. Gurovich, No. 03-CV-5166, 2005 WL 2456896, at *2 (E.D.N.Y. Oct. 5, 2005) (quoting Yurman Design, Inc. v. Chaindom Enterprises, No. 99-CV-9307, 2000 WL 1871715, at *1 (S.D.N.Y. Dec. 20, 2000)) ("While neither the Federal nor the Local rules expressly address this issue, courts in the Southern District, which are governed by the same Local Rules as the Eastern District with some limited exceptions, have found that `during the pendency of a motion for reconsideration before a magistrate judge, the time for filing an objection to the District Court is tolled.' As a practical matter, it would make no sense for a District Judge to decide an [objection] pursuant to Rule 72(a) while the order in question was still under consideration by the Magistrate Judge, who might change all or some of the order on reconsideration.") (internal citations omitted). Defendants thus timely objected to Judge Levy's denial of the motion for reconsideration. Accordingly, this court is not barred from considering defendants' instant objections to Judge Levy's April 5 Order. See, e.g., Norex Petroleum Ltd. v. Access Industries, Inc., No. 02-CV-1499, 2003 WL 21872389, at *1 (S.D.N.Y. Aug. 7, 2003) (holding that court was not barred from considering objections to a magistrate judge's original order because the time period within which the parties were able to file objections to the order was tolled while a motion for reconsideration was pending).
BACKGROUND
The facts at issue in the underlying complaint, as alleged by plaintiffs, are as follows. (Doc. No. 28, Second Am. Compl. dated 8/28/2009.) On June 8, 2007, plaintiff Robert Graham ("Graham") was driving his then four-year-old son, infant plaintiff J.G., home from school when their vehicle was stopped by defendant police officers Glenn and Ugbomah. (Id. ¶ 12, 13.)
Graham was forcibly removed from his vehicle, handcuffed, and placed in a police vehicle. (Id. ¶ 16, 17.) This incident occurred in the presence of J.G., who allegedly was left alone, unlawfully confined in his father's vehicle, and visibly traumatized by the event. (Id. ¶ 18-23.) Subsequently, plaintiffs Robert Graham and J.G., an infant, brought this action for compensatory and punitive damages, alleging various violations of their civil rights, including false arrest and unlawful imprisonment of both Graham and J.G. (Id. ¶¶ 1, 43-45.)
In connection with the false arrest claim, defendants sought to depose J.G. Defendants assert that on the eve of J.G.'s deposition, after requesting and obtaining plaintiff's consent to an extension of the fact discovery deadline, plaintiffs moved for a protective order on February 22, 2010, seeking to prevent J.G.'s deposition. Plaintiff's motion asserted that J.G.'s deposition was unnecessary because other witnesses provided sufficient testimony to establish that J.G. was conscious of his confinement, which is a prima facie element in plaintiffs' false arrest claim. (Doc. No. 24, Mot. for Protective Order dated 2/22/2010 ("Pl. Mot.") at 4.) Plaintiffs also asserted that "requiring the infant to recount the events surrounding [his father's arrest] would in all likelihood cause [him] trauma." (Id.) Defendants opposed plaintiff's motion, arguing that, as a party to the action and witness to the underlying facts, "only [J.G.] can testify as to the cause of his distress, be it from a sensation of being confined or be it from witnessing the arrest of his father." (Doc. No. 26, Letter in Opp'n dated 3/18/2010 at 2.) Because plaintiffs have chosen to pursue claims by J.G. against them, defendants argued that they "must have the opportunity to depose [J.G.] in order to defend against his allegations in this action, pertaining to both liability and damages." (Doc. No. 25, Resp. in Opp'n dated 2/22/2010 ("Def. Resp.") at 2.)
On April 5, 2010, Judge Levy issued the April 5 Order granting plaintiffs' motion for a protective order and ruling that defendants cannot depose J.G. "unless plaintiffs submit evidence from J.G., presumably by affidavit under penalty of perjury, in opposition to the [defendants' proposed summary judgment] motion," or unless plaintiffs designate J.G. as a witness for trial. (Doc. No. 27, April 5 Order at 2.) After extensive argument and close of review of the parties' submissions, Judge Levy concluded that defendants should not be permitted to take J.G.'s deposition based on a balancing of three factors: (1) the speculative potential benefit that might accrue to defendants' case from the deposition of a seven-year-old child regarding events that occurred when the child was four years old, (2) the potential trauma that could result from the deposition of a child as young as J.G., and (3) the likelihood that J.G. lacks competency to be sworn. (Id.)
On April 19, 2010, defendants moved for reconsideration of Judge Levy's April 5 Order. (Doc. No. 28, Motion for Recons. dated 4/19/2010 ("Def. Mot.").) Defendants argued that "precluding the deposition of an individual who is a voluntary party to a civil suit in which the subjective state of mind of the party deponent [consciousness of confinement] is an essential element of his claim constitutes a manifest injustice." (Id. at 2.) In a new argument that defendants did not allege in their original opposition to plaintiffs' motion for a protective order, in apparent response to Judge Levy's determination that J.G. likely lacked competency to be sworn, defendants also contended that, at a minimum, before sua sponte concluding that J.G. likely cannot be sworn, Judge Levy should have first held a competency hearing and that it was an abuse of discretion for Judge Levy to have summarily denied the deposition without such a hearing. (Id.)
On May 14, 2010, Judge Levy denied defendants' motion for reconsideration and found that the balance struck in the original order between the interests of both parties was appropriate. (Order Denying Reconsideration dated 5/14/2010 ("Reconsideration Order").) Judge Levy first noted that "a motion for reconsideration is not the moment to raise new arguments," but he nonetheless considered the merits and found that "defendants' arguments do not satisfy [the] strict standard" for prevailing on a motion for reconsideration. (Id.)
Defendants now object to the denial of their motion for reconsideration of Judge Levy's April 5 Order. (Doc. No. 32, Def. Object. dated 5/27/2010.) As set forth in footnote 1, supra, the court considers defendant's motion in the context of Judge Levy's original April 5 Order granting plaintiff's motion for a protective order.
DISCUSSION
A. Standard of Review
A district court may set aside a magistrate's judge's order concerning non-dispositive matters, such as discovery orders, only if the order is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); 28 U.S.C. § 636(b)(1)(A); see also Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990) (finding that matters involving pretrial discovery are generally considered "`nondispositive' of the litigation" and thus are subject to the "clearly erroneous or contrary to law standard" on review by a district court). An order is "clearly erroneous only when the reviewing court[, based] on the entire evidence[,] is left with the definite and firm conviction that a mistake has been committed." Deveer v. Gov't Employees Ins. Co., No. 07-CV-4437, 2008 WL 4443260, at *9 (E.D.N.Y. Sept. 26, 2008) (quoting Weiss v. La Suisse, 161 F. Supp. 2d 305, 320-21 (S.D.N.Y. 2001) (internal quotation marks omitted)). An order is "contrary to law when it fails to apply or misapplies relevant statutes, case law[,] or rules of procedure." Id. (internal quotation marks omitted).
Under the standard for protective orders, a federal court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1). "The party seeking a protective order bears the burden of establishing that good cause for the order exists." Duling v. Gristede's Operating Corp., 266 F.R.D. 66, 71 (S.D.N.Y. 2010); see Gambale v. Deutsche Bank AG, 337 F.3d 133, 142 (2d Cir. 2004) ("It is equally apparent that . . . if good cause is not shown, the discovery materials in question should not receive judicial protection. . . .") (quotingIn re "Agent Orange" Product Liability Litig., 821 F.2d 139, 145 (2d Cir. 1987)). Further, the movant must certify that, prior to seeking court intervention, "the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute." Fed.R.Civ.P. 26(c)(1).
Nevertheless, "the court ultimately weighs the interests of both sides in fashioning an order." Duling, 266 F.R.D. at 71. One court has enumerated the factors that courts in this Circuit "should consider in determining whether to issue a protective order" as including, without limitation: "(1) evidence of annoyance, embarrassment, oppression, or undue burden or expense; (2) how central or tangential the evidence sought is in relation to the central issues in the litigation; (3) the importance of the issues in the litigation to the public; (4) the parties' stakes in the outcome of the litigation; (5) whether the evidence sought is available from other sources; and (6) whether discovery of the evidence can be conditioned on terms that would alleviate the hardship in producing it." In re Initial Public Offering Sec. Litig., 220 F.R.D. 30, 36 (S.D.N.Y. 2003) (finding no public policy concern to justify denying securities underwriters identities of initial public offering securities purchasers because information in question was not obtainable elsewhere).
B. Review of the April 5 Order
The three factors explicitly considered by Judge Levy, namely, (i) the potential benefit to the litigation, (ii) the potential harm to infant plaintiff, and (iii) the likelihood that infant plaintiff lacks capacity to be sworn, essentially encompass the six factors outlined above. Considering each of Judge Levy's three factors in turn, the court respectfully finds that these factors weigh in favor of permitting J.G.'s deposition and denying the protective order.
1. Speculative Benefit of J.G.'s Testimony
The "speculative potential benefit" of J.G.'s testimony appears to be the primary factor underlying Judge Levy's April 5 Order. (April 5 Order at 2.) Judge Levy stated that "the testimony of a seven-year-old about events that occurred when he was four would not add meaningfully to defendants' [proposed] motion" and noted the availability of other witnesses to support plaintiffs' claims. (Id.) Judge Levy's discussion of this factor thus encompasses the considerations of "how central or tangential the evidence sought is in relation to the central issues in the litigation," as well as "the parties' stakes in the outcome of the litigation" and "whether the evidence sought is available from other sources." See In re Initial Public Offering Sec. Litig., 220 F.R.D. at 36.
Although J.G. may well have some difficulty recalling events that led to the current action, the court respectfully disagrees that J.G.'s testimony would be of speculative potential benefit. Rather, defendants should be entitled to discover J.G.'s testimony on the critical and very meaningful issue of J.G.'s consciousness of confinement, an element of J.G.'s false arrest claim.
The fact that J.G. was observed to be upset and confined does not necessarily mean that he was upset because of his confinement, a crucial issue that defendants should be entitled to explore directly through J.G.'s testimony. This testimony from a party witness could prove essential to the defense against J.G.'s false arrest claim, regardless of whether J.G. can recall the events giving rise to that claim or whether J.G. is sworn or unsworn. In addition to the issue of liability, J.G.'s deposition is relevant to plaintiffs' claims for damages. Thus, J.G.'s testimony regarding his state of mind is relevant to establishing the elements of his claims, and essential to defendants' ability to discover facts necessary to their defense, whether through a motion for summary judgment or trial. See, e.g., Orlik v. Dutchess County, No. 08-CV-1213, 2010 WL 1379776, at *6 (S.D.N.Y. Mar. 25, 2010) (dismissing false arrest claim of twelve-day-old plaintiff who failed to establish consciousness of confinement); Sager v. Rochester General Hosp., 647 N.Y.S.2d 408, 409 (N.Y. App. Div. 2d Dept. 1996) (finding that the confinement of plaintiffs' infant daughter in a hospital room was not enough to prove consciousness of confinement and dismissing false arrest claim).
Even if unsworn, as defendants argue is likely (Def. Object. at 3), J.G.'s statements may be admissible as admissions of a party opponent. See Fed.R.Evid. 801(d)(2)(A) ("A statement is not hearsay if . . . [t]he statement is offered against a party and is the party's own statement, in either an individual or representative capacity.").
The court recognizes that Judge Levy contemplated that if defendants were to prove unsuccessful on their motion for summary judgment, and "plaintiffs designate [J.G.] as a witness at trial, defendants [would] have the opportunity to take [J.G.'s] deposition at a reasonable time before trial." (April 5 Order at 2.) The court respectfully finds, however, that defendants should not have to forego a motion for summary judgment or proceed without J.G.'s statements — sworn or unsworn — as it appears that the speculative testimony from other witnesses regarding J.G.'s consciousness of confinement will artificially raise a material issue of fact, thereby precluding summary judgment. See Fed.R.Civ.P. 56; Pl. Mot. at 4. Moreover, judicial economy and efficiency weigh strongly in favor of conducting infant plaintiff's deposition prior to this court's consideration of defendants' proposed motion for summary judgment. As noted, J.G.'s testimony could prove dispositive on certain aspects of defendants' motion and/or significantly narrow the issues before the court at trial, saving resources for all parties, including the court, and potentially avoiding unnecessary further litigation.
As defendants argue, to preclude infant plaintiff's deposition in this case "may encourage other infant plaintiffs to bring suits at an early age to prevent defendants from mounting a proper defense to their claims." (Def. Object. at 4.) Where a plaintiff voluntarily brings an action seeking damages, defendants should not be so precluded from obtaining the discovery necessary to rigorously defend against the claims.
Thus, the demonstrated importance of J.G.'s state of mind to the central issues of both liability and damages, the inability of any other witness to provide direct evidence as to J.G.'s state of mind, and the concomitant value of J.G.'s testimony whether he can or cannot recall the events in question, together weigh in favor of allowing J.G.'s deposition and lead this court to respectfully conclude that plaintiffs' motion for a protective order was erroneously granted.
2. Potential Trauma to J.G.
Robert Graham has chosen to name his infant son as a plaintiff in this action, but has asserted to Judge Levy that J.G. "would be unnecessarily upset by defense counsel's questions about the incident." (Pl. Mot. at 3.) Judge Levy agreed with plaintiffs that the potential trauma for a child as young as J.G. to recount events surrounding his father's arrest outweighs any possible benefit from J.G.'s testimony to defendants' case. (See April 5 Order at 2.) This factor encompasses consideration of "evidence of annoyance, embarrassment, oppression, or undue burden or expense" and "whether discovery of the evidence can be conditioned on terms that would alleviate the hardship in producing it." See In re Initial Public Offering Sec. Litig., 220 F.R.D. at 36.
The court is mindful of plaintiff J.G.'s tender age and appreciative of Judge Levy's concerns, but notes that plaintiff provides no support for his claim that he would become "unnecessarily upset." (Pl. Mot. at 3.) In the absence of any such documentary or other supporting evidence, the asserted concern that J.G. would be unnecessarily upset by defendants' questions is merely speculative. Moreover, defense counsel assured the court that he would proceed cautiously and sensitively. (Def. Resp. at 2.) Indeed, defendants are entitled to discover whether J.G. has any memory of the incident giving rise to his claims. Thus, balancing the voluntary nature of infant plaintiff's involvement in the instant action and the speculative potential "upset" to J.G., as a voluntary plaintiff, against the significant potential prejudice to defendants if they are precluded from taking crucial discovery from a party witness, the court respectfully disagrees with Judge Levy's determination and finds that the balance between potential harm and potential benefit to both parties weighs in favor of allowing J.G.'s deposition.
3. Competency of J.G.
In his April 5 Order, Judge Levy briefly mentions that J.G. "likely cannot be sworn" as a basis for his decision. (April 5 Order at 2.) However, because the parties did not fully brief the issue of infant plaintiff's competency before Judge Levy prior to the April 5 Order (see Reconsideration Order), the court declines to review this portion of the parties' objections.
See Kamat v. Kurtha, No. 05-CV-10618, 2009 WL 103643, at *3 (S.D.N.Y. Jan. 15, 2009) (finding that a court need not address arguments that were not properly raised before the magistrate judge because a "party is not entitled as of right to a de novo review by the judge of an argument never seasonably raised before the magistrate") (quoting Baker v. ACE Advertisers' Serv., 153 F.R.D. 38, 43 (S.D.N.Y. 1992)).
CONCLUSION
With great appreciation for Judge Levy's careful consideration and analysis, the court respectfully finds that granting plaintiffs a protective order unfairly prevents defendants from mounting a vigorous defense to the claims against them. Further, allowing defendants to conduct J.G.'s deposition before proceeding any further in the case could save the parties' time and resources and promote judicial efficiency by avoiding the court's consideration of a lengthy summary judgment motion which lacks critical discovery.
Accordingly, the court respectfully overrules Judge Levy's April 5 Order, and denies plaintiff's motion for a protective order. The court respectfully defers to Judge Levy's discretion as to whether a separate competency hearing is necessary or whether the parties shall schedule and proceed with J.G.'s deposition, perhaps with Judge Levy's supervision, including inquiring into J.G.'s competency at the outset of the deposition.