Gugino v. City of Buffalo

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

MARTIN GUGINO, DECISION

and

Plaintiff, ORDER

v.

21-CV-283-LJV-LGF

CITY OF BUFFALO,

MAYOR BYRON BROWN,

ROBERT McCABE,

AARON TORGALSKI,

JOHN LOSI,

BYRON C. LOCKWOOD,

DEPUTY POLICE COMMISSIONER

JOSEPH GRAMAGLIA,

Defendants.

_____________________________________

APPEARANCES: LIPSITZ GREEN SCIME CAMBRIA LLP

Attorneys for Plaintiff

RICHARD P. WEISBECK, JR.,

MELISSA D. WISCHERATH, and

ROBERT MacWILLIAMS CORP, of Counsel

42 Delaware Avenue, Suite 120

Buffalo, New York 14202

PERSONIUS MELPER LLP

Attorneys for Non-party Witness John Evans

RODNEY O. PERSONIUS, of Counsel

2100 Main Place Tower

350 Main Street

Buffalo, New York 14202

This action was referred to the undersigned by Hon. Lawrence J. Vilardo on

March 22, 2021 (Dkt. 6), for non-dispositive pretrial motions. The matter is presently

before the court for consideration of the response of non-party witness John Evans (Dkt.

114 & 115) to this court’s order to show cause why Plaintiff’s attorney fees incurred in

connection with Plaintiff’s deposition of Evans, and Plaintiff’s successful motion to

compel further deposition of Evans (Dkt. 92) should not be awarded to Plaintiff. The

order to show cause was included in the undersigned’s May 30, 2024 Decision and

Order (Dkt. 112 at 36-37) (“D&O”).

In this civil rights action commenced on February 22, 2021, Plaintiff Martin

Gugino (“Plaintiff”), alleges Defendants including, inter alia, members of the City of

Buffalo Department of Police violated Plaintiff’s constitutional rights by subjecting

Plaintiff to unnecessary physical force, putatively because Plaintiff remained present at

a protest in violation of a recently imposed curfew, sustaining a fractured skull. In

connection with this action, on January 12, 2021, Plaintiff deposed non-party witness

John Evans (“Evans”), President of the Buffalo Police Benevolent Association (“PBA”)

(“the deposition”). Appearing at the deposition for Plaintiff was Melissa D. Wischerath,

Esq. (“Wischerath”), with Rodney O. Personius (“Personius”) appearing with Evans.

Prior to the deposition, Personius and Wischerath exchanged e-mails (“the e-mails”)

clarifying that Evans was to be deposed in his individual capacity rather than as

President of the PBA. During the deposition, Personius passed to Evans a typewritten

note instructing Evans to deny having authority to answer a deposition question.

Another typewritten note that was not passed to Evans instructed Evans to deny having

knowledge of the subject of a question. Personius maintained he would not have

needed the notes had Wischerath complied with Personius’s requests in the e-mails

that Wischerath identify the subjects on which Wischerath intended to depose Evans.

The deposition was then suspended to permit Wischerath to obtain the court’s guidance

as to how to proceed.

On January 12, 2024, Plaintiff moved for sanctions and to compel Evans’s

continued deposition uninterrupted or influenced by outside direction from Personius,

including the passing of any notes instructing Evans not to respond to any specific

questions (Dkt. 92). The undersigned found the passing of notes during the deposition

was designed to limit Evans’s responses which is prohibited by case law, the Local

Rules of Civil Procedure for the Western District of New York, and the undersigned’s

Deposition Guidelines,1 granted Plaintiff’s motion and directed Evans and his attorney,

Rodney O. Personius, Esq. (“Personius”), to show cause why Plaintiff’s attorney fees

incurred in connection with the deposition and in successfully moving to compel further

deposition of Evans should not be awarded to Plaintiff. D&O at 35-37. On June 24,

2024, Evans and Personius filed the Declaration of Counsel Opposing Assessment of

Costs and Imposition of Sanctions (Dkt. 114) (“Personius Declaration”), attaching a

volume of exhibits (Dkt. 114-1) A through E (“Evans’s Exh(s). __”), and the

Memorandum of Law Opposing Imposition of Costs or Sanctions (Dkt. 115) (“Evans’s

Memorandum”). On July 9, 2024, Plaintiff filed a Reply (Dkt. 116) (“Plaintiff’s Reply”).

The circumstances surrounding Plaintiff’s termination of the deposition establish Plaintiff

is entitled to an award of attorney fees based on Personius’s admitted interference with

the deposition.

Under Rule 30(c)(2) objections to deposition questions are to be stated concisely

and in a non-argumentative manner, and a deponent may not be advised not to answer

a question except in order to preserve a privilege, enforce a court imposed limitation, or

1 A copy of the Deposition Guidelines is filed as an attachment to the undersigned’s May 28, 2021

Amended Case Management Order (Dkt. 21).

to seek judicial relief pursuant to Rule 30(d)(3). 2 Further, under this court's Deposition

Guidelines, which were “So Ordered,” and are thus enforceable in accordance with

Fed.R.Civ.P. 16(f)(1)(C) (court may order sanctions pursuant to Fed.R.Civ.P.

37(b)(2)(A)(ii-vii) for violation of a pretrial order); see Kyntec Corporation v. ITT Enidine,

Inc., 2016 WL 1611358, at *4 (W.D.N.Y. April 21, 2016) (attorney fees awarded against

defendant's counsel for violation, by filing motion to dismiss, of pretrial order directing a

stay of proceedings pending completion of patent reexamination without court approval)

(citing caselaw), counsel are prohibited from making objections suggestive of a

response by a witness (Guideline No. 4), and neither a witness nor the witness's

attorney shall engage in argument with examining counsel regarding a question; instead

the witness's attorney is required to state an objection succinctly on the record and

allow the witness to answer (Guideline No. 11). Additionally, the Deposition Guidelines

may be enforced by imposition of a fine. See Scott-Iverson v. Indep. Health Ass'n, Inc.,

2017 WL 35453, at *5 (W.D.N.Y. Jan. 4, 2017) (citing Jones v. J.C. Penney Dept.

Stores, Inc., 228 F.R.D. 190, 198 (W.D.N.Y. 2005) (plaintiff's attorney subject to fine for

violating court's Deposition Guidelines and Rule 30(d)(1) (renumbered Rule 30(c)(2))).

Significantly, in the instant case, Evans and Personius do not contest that the conduct

Plaintiff points to in the record occurred, nor that such conduct violated Rule 30(c)(2).

“The 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). In

awarding such expenses, Fed.R.Civ.P. 37(a)(5) (“Rule 37__”) applies. Fed.R.Civ.P.

2 Fed.R.Civ.P. 30(d)(3) pertains to a motion to terminate or limit a deposition “conducted in bad faith or in

a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.”

30(d)(3)(C). An award of sanctions including, at a minimum, reasonable attorney's fees

incurred in prosecuting a motion to compel, is mandated by Rule 37(a)(5)(A) unless the

failure of the responding party to provide discovery was substantially justified or an

award of attorney's fees would, under the circumstances, be unjust. Underdog Trucking

LLC v. Verizon Services Corp., 273 F.R.D. 372, 377 (S.D.N.Y. 2011) (citing

Fed.R.Civ.P. 37(a)(5)(A)(ii), (iii)) (“Rule 37(a)___”). “A party's failure to provide

discovery is substantially justified if a genuine dispute exists or if there is an objectively

reasonable basis for the failure,” Rosehoff, Ltd. v. Truscott Terrace Holdings LLC, 2016

WL 2640351, at *4 (W.D.N.Y. May 10, 2016) (citing Parsi v. Daioleslam, 778 F.3d 116,

126 (D.C. Cir. 2015) (citing caselaw)), such as where the refusal to provide discovery

has a reasonable basis in fact or law. See Scott-Iverson v. Independent Health

Association, 2017 WL 759843, at * 2 (W.D.N.Y. Feb. 28, 2017) (a party's failure to

provide discovery may be substantially justified where a genuine dispute exists, there is

an objectively reasonable basis for the failure, or the failure was based on factors

beyond the requested party's control). Further, as the test for substantial justification is

“determined by an ‘objective standard of reasonableness and does not require that the

party have acted in good faith,’” Underdog Trucking, L.L.C., 273 F.R.D. at 377 (quoting

Bowne of New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 262 (S.D.N.Y. 1995)

(citing Pierce v. Underwood, 487 U.S. 552, 565 (1988))), that a party believed it was

acting in good faith is irrelevant. See Baicker-McKee, Janssen, Corr, FEDERAL CIVIL

RULES HANDBOOK (2016 Thomson Reuters) at 970 (“Good faith generally does not

equate to substantial justification; the losing party [on the motion to compel] must

demonstrate some unsettled issue of law or like circumstance.” (citing Pierce, 487 at

565; Parsi, 778 F.3d at 126-27) (underlining and bracketed material added)). In the

instant case, the record supports a finding that Personius’s interference with Plaintiff's

deposition of Evans was not substantially justified, nor would an award of attorney's

fees be otherwise unjust.

In particular, in the final e-mail exchanged between Personius and Wischerath on

January 10, 2024, Wischerath stated Evans would be deposed “as an individual and not

as a representative of the PBA.” Dkt. 114-1 at 6-15. Nevertheless, during the

deposition, Personius passed to Evans a note, typed onto a 3” X 5” index card (“the first

index card”), stating, “I do not have the authority in my individual capacity to respond to

your question.” Evans Dep. Tr.3 at 38. Typewritten on a second index card that was

not passed to Evans by Personius was, “I have no personal knowledge regarding this

subject.” Evans Dep. Tr. at 51. Personius stated that he intended to hand the notes to

Evans whenever Evans was asked a question that Personius considered was outside

the scope of Evans’s personal knowledge because Evans’s deposition was limited to

questions in his individual capacity, rather than seeking Evans’s opinions, beliefs and

concerns as Buffalo PBA president. Evans Dep. Tr. at 38-40. Personius further stated

that the index cards would not have been needed if Wischerath had complied with

Personius’s earlier request to identify the subjects Wischerath intended to cover at the

deposition. Id. at 41. Here, the court finds Personius, by passing a note to Evans

essentially directing Evans not to answer a question, was not substantially justified;

instead of interfering with and attempting to direct Evans’s answer, Personius could

have, as provided for by the undersigned’s deposition guidelines, instructed Evans to

3 References to “Evans Dep. Tr.” are to pages of the January 12, 2024 deposition of Evans, a copy of

which is included in Dkt. 114-1 at 16-78.

request Wischerath clarify that her questions sought Evans’s responses as an

individual, rather than as President of the PBA. See Guideline No. 1. Rather than

argue with Wischerath, Personius could have stated his objection for the record and

sought appropriate relief after completing the deposition. Guideline No. 10. Personius

also, if unclear whether a question sought Evans’s response in his individual capacity or

as PBA President, could have requested Wischerath to rephrase the question in

accordance with Guideline No. 11. Given these options, Personius was not

substantially justified in passing a note directing Evans not answer any question that

Personius believed was improperly phrased as seeking to elicit an answer in Evans’s

capacity as PBA President.

Nor does Personius’s averment that he was “derelict” in failing to review the

Deposition Guidelines prior to the deposition, Personius Declaration ¶¶ 27-29,

substantially justify the passing of a note to Evans. Significantly, even without the

Deposition Guidelines, it is basic that during a deposition no attorney is permitted to

instruct or direct a witness how to answer questions other than to assert a privilege.

See Fed.R.Civ.P. 30(c)(2) (“A person may instruct a deponent not to answer only when

necessary to preserve a privilege, to enforce a limitation ordered by the court, or to

present a motion under Rule 30(d)(3)”); Gould Inv'rs, L.P. v. Gen. Ins. Co. of Trieste &

Venice, 133 F.R.D. 103, 104 (S.D.N.Y. 1990) (“Absent a claim of privilege, instructions

not to answer questions at a deposition are improper.”) (citing Nutmeg Ins. Co. v. Atwell,

Vogel & Sterling, Div. of Equifax Servs., Inc., 120 F.R.D. 504, 508 (W.D. La. 1988)).

Here, Evans and Personius fail to identify any privilege sought to be preserved by

refusing to answer a deposition question. Accordingly, Personius’s argument that he

neglected to read the Deposition Guidelines does not provide the requisite substantial

justification for his conduct.

Nor is there any merit to Personius’s argument, Evans’s Memorandum at 13-14;

Personius Declaration ¶¶ 31-34, that Wischerath improperly terminated the deposition

without first seeking advice from the undersigned or permitting Personius to privately

consult with Evans to propose a means for moving forward with the deposition, which

Personius later memorialized in an e-mail to Wischerath sent two hours before

Wischerath filed the instant motion. Rather, a fair reading of the deposition transcript

establishes that Personius agreed that Wischerath would file the instant motion, adding

that Personius was “happy to respond to it on the basis of the record.” Dkt. 114-1 at 47.

Accordingly, Plaintiff's request for sanctions is GRANTED. Further, because the

record does not establish that Evans bears any responsibility for his discontinued

deposition based on the passing of the notes by Personius, the costs to be awarded

shall be subject to payment by Personius only. Plaintiff shall file not later than 20 days

from the date of this Decision and Order an affidavit of costs, including attorney fees,

incurred in connection with the discontinued deposition and in moving to compel

Evans’s continued deposition. Any response by Personius shall be filed within 10 days

thereafter; Plaintiff's reply shall be filed within 5 days thereafter. Oral argument shall be

at the court's discretion.

SO ORDERED.

/s/ Leslie G. Foschio

_________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

Dated: September 26, 2024

Buffalo, New York