United States District Court, M.D. Pennsylvania
Honorable Richard P. Conaboy United States District Court
consider here three motions arising from discovery disputes
between counsel. Plaintiff has filed two of these motions,
both of them motions for sanctions. (Docs. 28 and 30).
Defendant has filed a Motion to Limit Deposition Testimony
Pursuant to Federal Rule of Civil Procedure 30(d)(3). (Doc.
36). We note at the outset that the Court has broad authority
to craft an order “...to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following:... (D)
forbidding inquiry into certain matters, or limiting the
scope of disclosure or discovery to certain matters”.
See Rule 26(c)(1)(D). We shall consider these motions in the
order filed. Before doing so we briefly describe the context
case stems from Defendants' decision to reassign
Plaintiff from his position as a custodian in the high school
building of the Pittston Area School District to a similar
position in the district's elementary school. Plaintiff
also functions as the Vice-President of the union that
represents all Pittston Area School District support staff.
His principal allegation is that he was transferred in
retaliation for telling Defendant Jim Serino, the maintenance
director of the Pittston Area School District, that staff
morale was low due to the District's decision to schedule
work on Martin Luther King Day, January 15, 2016. Plaintiff
alleges further that the same day he voiced his concerns
about employee morale he was transferred to the primary
school location. He contends that he was reassigned for
promoting union concerns and that Defendants'
reassignment of him was designed to chill or to interfere
with legitimate union activity. This, Plaintiff contends, was
an abridgment of his First Amendment right of free speech
that, due to Pittston Area School District's status as a
state actor, constitutes a violation of 42 U.S.C. §
Plaintiff's First Motion for Sanctions. (Doc.
first motion concerns the deposition of Matt Szumski on May
17, 2017. Plaintiff asserts that Mr. Szumski's deposition
was not properly noticed. Plaintiff's counsel stated that
she objected to the deposition going forward due to improper
notice and that, despite her objection, Defendants'
counsel deposed Mr. Szumski in her absence. Plaintiff
requests: that the deposition be re-opened to afford
Plaintiff's counsel an opportunity to cross examine Mr.
Szumski; that Defendants be required to unilaterally bear the
costs of both the original and re-opened depositions; and
that Plaintiff be awarded an unspecified monetary sanction
and attorney fees in connection with the Szumski depositions.
counsel explains that Plaintiff's counsel should have
been aware of his intention to depose Mr. Szumski on March
17, 2017 because his paralegal had informed Plaintiff's
counsel that Matt Shumsky (sic) was intended to be a deponent
by email dated February 21, 2017. See Doc.
31-1. It must be noted, however, that a
subsequent (February 24, 2017) letter from Defendants'
counsel to Plaintiff's counsel did not indicate that Mr.
Szumski was among the five proposed deponents for March 17,
Plaintiff points out (Doc. 29 at 2) Rule 30(b)(1) of the
Federal Rules of Civil Procedure states that “[a] party
desiring to take the deposition of any person upon oral
examination shall give reasonable notice in writing to every
other party to the action.” The Court finds that
Defendants' counsel's misspelling of Mr.
Szumski's name in his correspondence coupled with his
omission of Mr. Szumski's name in his subsequent letter
to Plaintiff's counsel defeats any notion that he
supplied Plaintiff's counsel with the requisite
“reasonable notice” contemplated by Rule
30(b)(1). Accordingly, Mr. Szumski's deposition may be
reconvened in order to give Plaintiff's counsel a
reasonable opportunity to cross-examine him.
other requests that Defendant pay some monetary sanction and
be required to pay the full cost of both Mr. Szumski's
depositions is denied because the Court finds that
Defendants' counsel made an attempt, albeit unsuccessful,
to provide notice and that his conduct was not so egregious
as to require Defendant to bear these costs unilaterally.
Plaintiff's Second Motion for Sanctions (Doc.
second motion for sanctions seeks to reopen the depositions
of Kenneth Bangs and James O'Brien due to Defendants'
counsel's direction to these deponents not to answer
certain questions posed by Plaintiff's counsel. Plaintiff
specifically complains that: (1) Defendants' counsel
refused to allow Mr. Bangs to answer a question regarding his
receipt of “comp time” as a salaried employee;
and (2) Defendants' counsel refused to allow Mr.
O'Brien to answer a question regarding an allusion to
back taxes he may owe as a result of his operation of a
counsel's question to Mr. Bangs, a maintenance supervisor
at Pittston Area School District, insinuated that by
accepting “comp time” as a salaried employee he
was somehow engaging in criminal activity. Plaintiff's
counsel's line of questioning also solicited a legal
opinion from a lay person who had no apparent expertise to
support such an answer. Defendants' counsel instructed
Mr. Bangs not to respond to these questions on the grounds
that he was not going to allow Mr. Bangs to potentially
incriminate himself and that Plaintiff's counsel's
questions were both oppressive and irrelevant to the subject
matter of the case.
counsel's questions to Mr. O'Brien, a warehouse
supervisor at Pittston Area School District,  delved into
whether he owed back taxes in connection with his operation
of a tavern which he sold in 2008. Defendants' counsel
objected to this line of questioning as harassment and as
irrelevant to the subject matter involved in this law suit.
Plaintiff's counsel contends that Mr. O'Brien's
potential debt for back taxes reflects on his credibility and
makes this line of questioning relevant. The Court will
observe that, had Mr. O'Brien been convicted of tax
evasion, that would certainly reflect upon his credibility.
However, his potential debt for back taxes, to the extent
there is one, sheds no light on his credibility or the lack
thereof since many honest people owe back taxes for reasons
that have nothing to do with dishonesty.
reviewed Plaintiff's complaint, the briefs filed by the
parties, and the deposition transcripts provided by the
parties, the Court finds that Plaintiff's counsel's
line of questioning to both Mr. Bangs and Mr. O'Brien
ranged too far afield from any subject matter relevant to the
issues in this case and were unduly oppressive as well.
Accordingly, the Court finds that Plaintiff's counsel has
had ample opportunity to question both men and, as such, will
deny Plaintiff's second motion for sanctions in all
Defendants' Motion to Limit ...