United States District Court, M.D. Pennsylvania
D. MARIANI UNITED STATES DISTRICT JUDGE.
Introduction and Procedural History
action, Michael Fuller ("Plaintiff'), a former
police sergeant for the Borough of Wyoming, claims that the
Borough and Mayor Robert Boyer (collectively
"Defendants"), retaliated against him for engaging
in protected speech. Specifically, Plaintiffs Second Amended
Complaint, (Doc. 21), brings two First Amendment retaliation
claims pursuant to 42 U.S.C. § 1983 which allege that
Defendants suspended Plaintiff and took other adverse
employment action against him in retaliation for Plaintiff
(1) reporting Defendant Boyer's girlfriend's
misconduct to the Pennsylvania State Police (Count I), and
(2) filing the present lawsuit (Count II). Presently before
the Court is Defendants' Motion for Summary Judgment.
(Doc. 40). For the reasons that follow, the Court will grant
in part and deny in part Defendants' Motion.
Statement of Undisputed Facts
delving into the facts of this case, the Court is forced to
deal with a preliminary issue. Rule 611 of the Federal Rules
of Evidence provides that "[l]eading questions should
not be used on direct examination except as necessary to
develop the witness's testimony." Fed.R.Evid. 611
(c). Rule 30 of the Federal Rules of Civil Procedure provides
that "[t]he examination and cross-examination of a
deponent proceed as they would at trial under the Federal
Rules of Evidence, except Rules 103 and 615."
Fed.R.Civ.P. 30(c)(1). Rule 30 also states, "[t]he court
may impose an appropriate sanction-including the reasonable
expenses and attorney's fees incurred by any party-on a
person who impedes, delays, or frustrates the fair
examination of the deponent." Fed.R.Civ.P. 30(d)(2).
Third Circuit has stated that "it is generally improper
for [an] attorney to employ leading questions" when
"pos[ing] questions to a friendly witness during a
direct examination." Jarbough v. Attorney Gen.,
483 F.3d 184, 192 (3d Cir. 2007) (citing Fed.R.Evid. 611(c)).
Leading questions are undesirable in this context because of
their suggestive power. The "search for the truth,
" Nix v. Whiteside, 475 U.S. 157, 171,
106 S.Ct. 988, 89 L.Ed.2d 123 (1986), in our adjudicatory
system is best served when the finder of fact considers the
testimony of the friendly witness based upon his or her
recollection, not the testimony of counsel calling the
witness. Suggesting answers to the friendly witness may
"supply a false memory for the witness-that is, to
suggest desired answers not in truth based upon real
recollection." 3 John Henry Wigmore, Evidence
§ 769, at 154 (Chadbourne Rev. 1970). See Hail v.
Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993)
("It should go without saying that lawyers are strictly
prohibited from making any comments, either on or off the
record, which might suggest or limit a witness's answer
to an unobjectionable question.").
Id. at 192-93.
Hall decision, cited by the Jarbough court
above, involved an attorney who sought to confer with his
client while the client was being deposed and to take
recesses for such conferences to occur. Hall, 150
F.R.D. at 526. The court held that these practices-as well as
the practice of interposing objections that "suggest or
limit a witness's answer to an unobjectionable
question"-were inappropriate and abused the deposition
process. See Id. at 530-31. The court observed,
The underlying purpose of a deposition is to find out what a
witness saw, heard, or did-what the witness thinks. A
deposition is meant to be a question-and-answer conversation
between the deposing lawyer and the witness. There is no
proper need for the witness's own lawyer to act as an[
intermediary, interpreting questions, deciding which
questions the witness should answer, and helping the witness
to formulate answers. The witness comes to the
deposition to testify, not to indulge in a parody of
Charlie McCarthy, with lawyers coaching or bending
the witness's words to mold a legally convenient
record. It is the witness-not the lawyer-who is the
witness. As an advocate, the lawyer is free to frame
those facts in a manner favorable to the client, and also to
make favorable and creative arguments of law. But the lawyer
is not entitled to be creative with the facts. Rather, a
lawyer must accept the facts as they develop.
Id. at 528 (footnote omitted) (emphasis added).
to the case at hand, the following exchange took place
between Plaintiff and his Counsel at Plaintiff's
Q And let's go through your complaint. If you could go to
Defendant's 2 page 3, and if you could read starting at
. . .
Q Go to page three and if you could start reading at page 11
and then if you could after each allegation say if that is
true or not.
MR. McDONOUGH: Paragraph 11-
MS. POLLICK: Paragraph.
MR. McDONOUGH: -1 think you meant to say.
MS. POLLICK: Yes.
Q So, 11.
A Eleven: On or about August 7, 2015, plaintiff reported
official misconduct related to Defendant Boyer's
girlfriend who was also defendant borough of borough manager.
Q So can you attest if that's true or false?
Q Number 12?
A Number 12: Plaintiff reported that Boyer's girlfriend
may have committed wrongdoing/crime by fixing a bid to the
Pennsylvania State Police and the Federal Bureau of
Investigation, FBI, which are both outside of the
plaintiff's chain of command. The plaintiff specifically
spoke with Pennsylvania State Trooper Bill Schutter and an
unknown or a name unknown FBI agent.
Q True or false?
A True. Thirteen: Plaintiff was acting as a citizen when he
went outside the chain of his command and reported official
misconduct with Boyer's girlfriend to the Pennsylvania
State Police and FBI.
Q True or false?
MR. McDONOUGH: Object to the form.
MR. JENNINGS: Objection.
MR. McDONOUGH: Calls for a legal conclusion.
Q You can answer the question.
(Dep. of Michael Fuller, Doc. 42-1 at 95-97). Much of
Plaintiffs counsel's questions proceeded in this manner.
Q Then I'm going to skip a couple and then go to 44.
A Forty-four: But for engaging in protective activities and
seeking access to The Courts, Plaintiff Fuller has been
subjected to even more retaliatory acts which shows ...