Rys

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________________________________

Marissa Rys,

Plaintiff,

v. 6:19-CV-1251

(FJS/MJK)

Clinton Central School District,

Defendant.

_____________________________________________________________________

A.J. Bosman, Esq., for Plaintiff

Charles C. Spagnoli, Esq. for Defendants

Paul G. Ferrara, Esq. for Non-party witnesses

Mitchell J. Katz, U.S. Magistrate Judge

MEMORANDUM-DECISION & ORDER

Before the Court is Rys’s motion to compel the non-party

witnesses, Elizabeth Hoffman and Melinda Bowe, to answer certain

questions that were asked during their depositions. (Pl. Mot. to Compel,

Dkt. 219). Rys also seeks attorney’s fees and expenses associated with

the motion in accordance with Federal Rule of Civil Procedure

37(a)(5)(A). The School District and non-party witnesses oppose the

motion. (Def. Memo of Law, Dkt. 221; Witnesses Memo of Law, Dkt.

223). Rys replied to both opposition papers. (Pl. Reply Brs. Dkts. 225,

226). Below, the Court (1) reviews the tortured history of this six-year-

old case, (2) evaluates Bosman and Ferrara’s stunning behavior, (3)

decides what questions should have been answered at the deposition,

(4) rules on whether it is appropriate for Bosman to re-depose both

witnesses, and (5) sanctions Bosman and Ferrara.

* * *

TABLE OF CONTENTS

I. BACKGROUND .................................................................................. 3

A. The Parties ....................................................................................... 3

B. The Underlying Case ....................................................................... 3

C. Procedural History ........................................................................... 5

II. LEGAL FRAMEWORK ....................................................................... 8

III. DISCUSSION ...................................................................................... 9

A. The Deposition Objections ............................................................. 10

1. This Court’s Prior Order on Work Product ................................. 10

2. Attorney-Client Privilege. ........................................................... 17

3. Expert Opinion ............................................................................ 27

4. Impeachment Evidence ............................................................... 36

5. Remaining Challenges ................................................................ 41

B. Re-deposing Bowe and Hoffman1 ................................................... 49

C. Sanctions ........................................................................................ 53

IV. CONCLUSION .................................................................................. 62

* * *

1 The Court includes a compilation of the questions that the witnesses should have

answered in Section B on pages 50-51.

I. BACKGROUND

A. The Parties

During the time period that gave rise to this case, Bowe and

Hoffman were lawyers at Costello, Cooney, & Fearon, PLLC. At that

time, Bowe was a partner, and Hoffman was an associate in the

litigation practice. (Hoffman Deposition, Dkt. 207-1, pg. 27, at lns. 15-

16; pg. 32, at lns. 20-21). Since then, Hoffman has become a partner at

Costello, Bowe has left Costello, and Costello sued Bowe in state court

over a financial issue which has been settled. (Hoffman Deposition, Dkt.

207-1, pg. 27, at lns. 3-10); (Bowe Deposition, Dkt. 207-2, pg. 18, at lns.

10-12; pg. 23-24, at lns. 19-12; pg. 15, at lns. 3-7). At the depositions,

Ferrara, who is a lawyer at Costello, represented Hoffman and Bowe.

(Bowe Deposition, Dkt. 207-2, pg. 2).

B. The Underlying Case

At some point in time, a person alleged to Clinton Central School

District that Rys and a student, K.S., had an inappropriate teacher-

student relationship. (Bowe Deposition, Dkt. 207-2, pg. 47, at lns. 3-9);

(Hoffman Deposition, Dkt. 207-1, pg. 28, at lns. 13-14). This allegation

prompted the School District to hire Costello to investigate the

relationship between Rys and K.S.2 (Bowe Deposition, Dkt. 207-2, pg.

54-55, at lns. 19-5; pg. 108, at lns. 4-6). The School District asked

Costello, specifically Bowe, to investigate the allegation and submit a

report with recommendations. (Hoffman Deposition, Dkt. 207-1, pg. 35,

at lns. 19-23).

Wanting someone with investigation experience, Bowe reached

out to Hoffman and asked whether she wanted to work on this case.

(Bowe Deposition, Dkt. 207-2, pg. 70, at lns. 9-16). Hoffman agreed. See

(Bowe Deposition, Dkt. 207-2, pg. 27, at lns. 17-24). Now tasked with

performing the investigation, Hoffman interviewed Rys, K.S., who both

identify as lesbians, and many other people. (Hoffman Deposition, Dkt.

207-1, pg. 30 at lns. 1-2, 9-15). The investigation revealed that Rys went

to K.S.’s home during the school day and rubbed tiger balm on K.S.’s

back. (Hoffman Deposition, Dkt. 207-1, pg. 91 at lns. 21-24; pg. 153, at

lns. 2-4). The investigation also found that Rys gifted K.S. a bracelet in

morse code and called K.S. “my person.” (Hoffman Deposition, Dkt. 207-

1, pg. 91 at lns. 7-10). After completing their investigation, Hoffman

and Bowe submitted two reports to the School District: a draft report in

2 Costello also generally represented the School District on other unrelated matters.

April 2018 (“April 2018 report”), and a final report in May 2018 (“May

2018 report”). Sometime after receiving the May 2018 report, the School

District fired Rys.

C. Procedural History

Because of her termination, Rys sued the School District and

others alleging Title XII, Title IX, Equal Protection, Free Speech,

Procedural Due Process, and Malicious Prosecution claims. (Complaint,

Dkt. 1, pg. 14-19). Since then, this case has toiled and twisted through

six years of motion and discovery practice. See, e.g., (Dkts. 4, 44, 68,

100, 130).

During that time, various judges of this Court have issued several

decisions in this case. On January 5, 2023, Magistrate Judge Andrew

Baxter, expressly irritated by the conduct of the lawyers, addressed the

discovery disputes presented to him. Magistrate Judge Baxter noted

“I’m going to provide some specific rulings as well as some general

guidance to you about my views as to what discovery will be

proportional in this case and then expect you to actually discuss these

discovery issues at length and work out, or at least dramatically

narrow, your differences with those issues that I haven’t definitively

addressed.” (Dkt. 99 at 3). Continuing, Magistrate Judge Baxter said:

“I’ll say a couple of things about privilege issues and this is off the top of

my head so I’m, you know, going to make this sort of tentative guidance

as opposed to something definitive. I don’t know what you have on your

privilege log. To the extent your privilege log relates to the investigation

that was conducted of the plaintiff’s conduct towards K.S., given that

you are relying on that conduct as the nondiscriminatory reason for her

termination, I find it hard to believe you’re not going to open the door to

turning that over.” (Dkt. 33 at pg. 35). To end, Magistrate Judge Baxter

noted his expectation that there would need to be an in-camera review

of the documents to really figure out what’s privileged. (Id.).

This Court performed that in-camera review after the Chief Judge

reassigned this case to this Court. After reviewing the documents, this

Court issued an order:

Reference is made to the privilege log filed at [170-1] and

specifically the line items on the spreadsheet. The requests

for items 44, 45, 46 and 47 were previously withdrawn by

plaintiff. It is ORDERED that the items not specifically

addressed have been found to be privileged, and it is further

ORDERED as follows: Item 2 - April 20, 2018 email from

Grimm to Bowe is privileged. The forwarded email is not

privileged; Item 11 - May 7, 2018 3:21PM email from Grimm

to Bowe is privileged. The forwarded email (Grimm to King)

is not privileged, May 7, 2018 4:21PM email from Grimm to

Bowe is privileged, May 7, 2018 4:07PM email from Bowe to

Grimm is privileged, May 7, 2018 3:11PM email from Grimm

to Bowe is privileged, May 7, 2018 2:07PM email from King

to Grimm is not privileged; Item 17 - May 20, 2018 email

from Grimm to Bowe is privileged; May 19, 2018 email and

attachment from KS to Grimm is not privileged; Item 18 -

May 20, 2018 email from Grimm to Bowe is privileged, May

19, 2018 email and attachment from KS to Grimm is not

privileged; Item 23 - May 24, 2018 email from Grimm to

Bowe and Hoffman is privileged, May 24, 2018 email from

mrpostmaster@ccs.edu to Grimm and attachment from Rys

dated May 24, 2018 are not privileged; Item 24 - May 29,

2018 email from Scranton to Bowe is privileged. May 29,

2018 email from mrpostmaster@ccs.edu to Scranton and

attachments (May 14, 2018 letter from Grimm to Rys, and

May 24, 2018 letter from Grimm to Rys) are not privileged;

Item 30 - May 31, 2018 email from Bowe to Grimm and

Scranton is privileged. The following attachments are NOT

privileged - May 4, 2018 letter from Grimm to Rys, May 9,

2018 letter from Rys to Grimm, May 14, 2018 letter from

Grimm to Rys, May 24, 2018 letter from Rys to Board, May

29, 2018 letter from Rys to Whom It May Concern, May 29,

2018 letter from Rys to Board; Item 32 - June 4, 2018 email

from Grimm to Bowe is privileged. The attachment is not

privileged; Item 41 - June 6, 2018 email from Grimm to

Bowe is privileged. The forwarded emails and attachment

are not privileged; Item 42 - June 28, 2018 email from

Grimm to Bowe is privileged. The forwarded email and

attachment are not privileged. The court specifically holds

that the privilege was not waived with respect to items

1,3,4,5,6,7,16,19,21 and 22 (law firm internal drafts of the

investigation and supplemental investigation reports), as the

drafts were prepared by attorneys, contain their mental

impressions, were not shared with the District and could not

bear on the intent and motivation of the District. SO

ORDERED

(October 4, 2024 Text Order, Dkt. 179).

Rys appealed this order and Senior United States District Judge

Scullin affirmed the Court’s decision. (Dkts. 185, 205). While the

October 4, 2024 Text Order was on appeal, this Court ordered the

parties to depose Hoffman and Bowe. (Dkt. 199). The parties tried to do

so. See (Hoffman Deposition, Dkt. 207-1; Bowe Deposition; 207-2). In

between the bickering and ad hominem attacks, Ferrara (and Charles

Spagnoli, Esq. who represented the school district) lodged several

objections at both depositions. The Court now rules on those objections.

II. LEGAL FRAMEWORK

“The 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). “An objection at the time of the

examination—whether to evidence, to a parties conduct, to the officer’s

qualifications, to the manner of taking the deposition, or to any other

aspect of the deposition—must be noted on the record, but the

examination still proceeds; the testimony is taken subject to any

objection.” Fed. R. Civ. P. 30(c)(2). “An objection must be stated

concisely in a nonargumentative and nonsuggestive manner. 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).” Id.

While it is often the case that the focus is on the lawyer defending

the witness, it is clear from the first sentence of Rule 30(c) that the

examining attorney’s conduct must be the same in a deposition as it

would at trial. See Fed. R. Civ. P. 30(c)(1), (c)(2). So, like trial, the

examiner must have a good faith basis for a question. See, e.g., Hynes v.

Coughlin, 79 F.3d 285, 294 (2d Cir. 1996) (noting that there must be a

good-faith basis for questions). A question posed in bad faith or in

violation of a prior court order violates this rule. See Fed. R. Civ. P.

30(c)(1).

III. DISCUSSION

The Court now examines the parties’ contentions. First, the Court

breaks down the challenges into five broad categories: (1) This Court’s

Prior Order on Work Product; (2) Attorney-Client Privilege;

(3) Impeachment Evidence; (4) Expert Opinion; and (5) Remaining

Challenges. Within each category, the Court recites the controlling legal

framework, identifies the issue, includes the deposition questions that

raise issues, and then rules on the objection. Next, the Court finds that

Bowe and Hoffman should not be recalled as deposition witnesses.

Finally, the Court sanctions Bosman and Ferrara for their conduct.

A. The Deposition Objections

1. This Court’s Prior Order on Work Product

Ferrara seeks to preclude Bosman from asking questions that

intrude into aspects of the case this Court determined was off limits.

Bosman, on the other hand, makes an assortment of arguments that

can be summarized as these aspects of the case are not off limits. The

Court addresses each challenge.

“Ordinarily, a party may not discover documents and tangible

things that are prepared in anticipation of litigation or for trial by or for

another party or its representative.” Fed. R. Civ. P. 26(3)(A). Thus, “the

work product doctrine provides qualified protection for materials

prepared by or at the behest of counsel in anticipation of litigation or for

trial.” The Shinnecock Indian Nation v. Kempthorne, 652 F. Supp. 2d

345, 362 (E.D.N.Y. 2009) (cleaned up). The doctrine “protects the files

and the mental impressions of an attorney reflected . . . in interviews,

statements, memoranda, correspondence, briefs, mental impressions,

personal beliefs, and countless other tangible and intangible ways.” A.

Michael’s Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994) (cleaned

up). So work-product protection is afforded to materials “prepared by

the attorney [them]self.” United States v. Nobles, 422 U.S. 225, 238-39

(1975).

This Court has already determined that the reports not shared

with the School District are afforded work-product protection. (October

4, 2024 Text Order, Dkt. 179). In fact, this Court held that “privilege

was not waived with respect to” the “law firm[’s] internal drafts of the

investigation and supplemental investigation reports” because “the

drafts were prepared by attorneys, contained their mental impressions,

were not shared with the district and could not bear on the intent and

motivation of the district.” (October 4, 2024 Discovery Order, Dkt. 179);

see (Judge Scullin’s May 29, 2025 Order, Dkt. 205, at pg. 3).

Undaunted by this Court’s Discovery Order, Bosman hounded the

witnesses to circumvent this Court’s order. Bosman’s frontal assault

began with Hoffman:

Bosman: How many versions of the report did

you do?

Spagnoli: Objection to form.

Ferrara: Objection to form. Instruct the witness

not to answer. Attorney-client privilege.

Bosman: Certify that.

(Hoffman Deposition, Dkt. 207-1, pg. 99-100, at lns. 21-2).

* * *

Bosman: No, I mean how many versions of the

report were there?

Spagnoli: How many drafts?

Bosman: Sure, how many drafts. How many

drafts?

Spagnoli: Objection.

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pg. 100, at lns. 16-22).

* * *

Bosman: What did you add or remove from the

original draft?

Spagnoli: Objection

Ferrara: Objection to form?

Bosman: After you had interviewed a witness?

Ferrara: Objection to form, instruct the witness

not to answer

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pgs. 102-103, at lns. 19-1).

Bosman also approached Bowe with the same line of questioning:

Bosman: Did you review the final reports that

were prepared by Ms. Hoffman?

Ferrara: Object to form. You can answer.

Bowe: I know I reviewed the draft report and

most likely was copied on the final report.

Bosman: How many draft reports were there?

Bowe: I don't recall.

Spagnoli: Objection. Goes beyond the scope. If

you want to ask her about the one draft that was

shared with the school district, that's okay.

Bosman: Oh. Come on.

Spagnoli: But it’s been ruled that other drafts

are not subject to question.

Bosman: All right. Certify the question. I'm not

going to put up with that. You don’t be — you

don’t be coaching our witness. You know better

than that.

Spagnoli: I’m making an objection. And it was

well founded, as you know.

Bosman: No. It was not well founded at all. It

was typical of you, but it was not well founded.

(Bowe Deposition, Dkt. 207-2, pg. 109-110, lns. 17-17) (cleaned up)

* * *

Bosman: Did you make any corrections or make

any suggestions to Ms. Hoffman with respect to

the reports?

Spagnoli: Objection. Again, unless the question

is limited to the one draft that was shared with

the school district, you go –

Bosman: Oh. Cut it out.

Spagnoli: —contrary to the judge’s order.

Bosman: Certify the question.

Bosman: Did you change anything on the draft

report that was provided to you for review by Ms.

Hoffman?

Spagnoli: Same objection. I believe that this

questioning end run – is – an attempt to end run

the judge’s ruling.

Bosman: What you believe is irrelevant, Charles.

Certify the question.

Spagnoli: I haven’t instructed the witness not to

answer. Any such instruction would have to come

from Mr. Ferrara.

Ferrara: I’m going to instruct the witness not to

answer.

(Bowe Deposition, Dkt. 207-2, pg. 113, lns. 5-19.)

* * *

Bosman: And what happened to the annotated

draft investigative report that you prepared in –

on April 22, 2018?

Spagnoli: Okay. I’m going to object. This invades

the area that has been ruled off limits by both

magistrate judge and the district judge. It’s

attorney-client privileged and work product.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 133, lns. 16-23.)

* * *

Bosman What — yeah. What was the initial

contact with Ms. Rys with respect to her being

seen with [K. S.]?

Ferrara: Objection to form. You can answer as to

what your knowledge of the initial contact was.

Bowe: I don't —

Spagnoli: Yeah. I'm going to —hold on. I'm going

to object to that because I believe it go — it

threatens to go outside the scope of the fact

investigation that began on April 3, 2018, and

therefore it is in violation of the attorney-client

privilege and beyond the scope of what the judges

have allowed you to get into in discovery here.

Ferrara: Based on that objection, [Bowe], I have

to instruct you not to answer.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 161-162, lns. 16-7.)

The Court denies Bosman’s motion to compel as to these

questions. “Questioning of a witness which is obviously designed to

discover an attorneys’ work product” is not permitted. SR Int’l Bus. Ins.

Co. v. World Trade Ctr. Props. LLC, No. 01-CV-9291, 2002 WL 1334821,

at *5 (S.D.N.Y. June 19, 2002). In addition, this Court’s Discovery

Order limited Bosman to asking Hoffman about the April 2018 Draft

Report and May 2018 Final Report because the drafts that were not

shared with the School District “could not bear on the intent and

motivation of the” School District. (October 4, 2024 Discovery Order,

Dkt. 179); see (Judge Scullin’s May 29, 2025 Order, Dkt. 205, at pg. 3)

(affirming that order). Yet it is undeniable that Bosman’s questioning

was an end run around the Court’s October 4, 2024 Discovery Order.

That conduct is intolerable. In plainer terms, Bosman’s question was

not a sheep in wolf’s clothing: that wolf came as a wolf. In consequence,

Spagnoli’s and Ferrara’s objections on this score are sustained.

Bosman’s counter argument on this point is unpersuasive.

Bosman argues that “the October 4 Order placed no limitation on the

scope of depositions.” (Reply Brief, Dkt. 226, at pg. 7) (cleaned up). That

is both disingenuous and wrong. Fed. R. Civ. P. 26(b)(3) “defines a

qualified immunity from discovery for documents prepared in

anticipation of litigation or for trial” and “this immunity applies . . . to

deposition testimony concerning the substance of such work-product.”

Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 471

(S.D.N.Y. 1993). Here, the Court’s October 4 2024 Discovery Order

found that work-product doctrine protects several items. (October 4,

2024 Discovery Order, Dkt. 197). Implicit in this ruling is a finding that

Bosman cannot depose witnesses on these items because they are

protected. The argument that the Court’s Order did not specifically

limit the scope of the depositions is specious; Bosman is an experienced

trial attorney and knew better. The Court did not need to spell out for

counsel that which was plainly obvious. So contrary to Bosman’s

argument, the Court’s October 4, 2024 Discovery Order limited the

scope of the deposition.

2. Attorney-Client Privilege.

Ferrara objects to several questions arguing that they invade the

protections of attorney-client privilege. Bosman disagrees. The Court

now addresses those arguments.

“The attorney-client privilege is the oldest of the privileges for

confidential communications known to the common law.” Upjohn Co. v.

U.S., 449 U.S. 383, 389 (1981). Attorney-client privilege “requires the

client’s attorney, to protect from disclosure communications made in

confidence relating to legal advice sought by the client from the lawyer

in the lawyer’s professional capacity.” MacKenzie-Childs LLC v.

MacKenzie-Childs, 262 F.R.D. 241, 247 (W.D.N.Y. 2009). It is axiomatic

that information protected by attorney-client privilege is not

discoverable. See, e.g., Robinson v. Time Warner, Inc., 187 F.R.D. 144,

146 (S.D.N.Y. 1999) (“Plaintiff is neither entitled to discover the notes

taken by Levien or any other attorney assisting Levien in the internal

investigation, nor allowed to review the final investigative report

prepared by Levien.”); see also Upjohn, 449 U.S. at 390 (“[T]he

[attorney-client] privilege exists to protect not only the giving of

professional advice to those who can act on it but also the giving of

information to the lawyer to enable him to give sound and informed

advice.”).

To start, the target of Bosman’s question makes no sense. This

portion of the colloquy began as Bosman questioned Hoffman about

whether there was a duty to report the subject matter of this action to

Child Protective Services. (Hoffman Deposition, Dkt. 207-1, pgs. 40-42).

Bosman began:

Bosman: Did the discussion of whether or not to

report the matter involving my client to Child

Protective Services ever come up in conversations

with you and Melinda [Bowe]? [emphasis added]

Ferrara: Object to form. You mean between her

and Melinda?

Bosman: Yes.

Ferrara: To the extent that involves attorney-

client privilege I’m instructing the witness not to

answer. I’m instructing her not to answer.

[emphasis added]

(Hoffman Deposition, Dkt. 207-1, pg. 42, at lns. 9-20).

Ferrara understood the question as potentially asking whether

Hoffman and Bowe advised the School District to report Rys to Child

Protective Services. With that understanding, it is clear why Ferrara

objected: Costello represented the School District in other matters, so

without a specific time frame, Bosman’s question may (note Ferrara’s

use of the phrase “to the extent”) pierce attorney-client privilege.

But the remainder of the colloquy is instructive here. Bosman

continues:

Bosman: Was that an attorney-client

conversation that you had with Melinda Bowe?

Ferrara: Assuming it was a conversation, by her

answering would violate attorney-client privilege.

Bosman: Certify the question.

Bosman. Did you have any conversations with

Melinda Bowe as a client?

Ferrara: Her as a client?

Bosman: Yes.

Ferrara: Objection to form. Instruct her not to

answer.

Bosman: Certify the question.

Bosman. Did you have any understanding that

Melinda Bowe was your client?

Ferrara: Objection to form. Instruct the witness

not to answer.

Bosman: Certify the question.

Bosman: Did you have at any time an

understanding that Melinda Bowe was seeking

legal advice from you?

Ferrara: Objection to form. Instruct the witness

not to answer.

Bosman: Certify the question.

Bosman: Did you provide Melinda Bowe legal

advice at any time?

Ferrara: Objection to form. Instruct the witness

not to answer.

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pgs. 42-44, lns. 21-1).

With context, it seems that Bosman was asking about a possible

attorney-client relationship between Hoffman and Bowe—who were an

associate and partner at Costello during the investigation. That said,

Bosman never asked about conversations between the attorneys and

the School District. So, the Court overrules Ferrara’s objection.

On the other hand, Ferrara’s objection to Bosman’s attempt to pry

into the substance of Bowe’s attorney-client relationship with the School

District is sustained. Attorney-client privilege protects communications

made “to facilitate the rendering of legal services by the attorney.”

Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 518 (S.D.N.Y.

1992) (cleaned up). Yet Bosman tried to circumvent the protections of

attorney-client privilege when she asked:

* * *

Bosman: Did you advise at any time the school

district to report Marissa Rys for having an

inappropriate relationship with a student?

Spagnoli: Okay. I’m going to object to that. I

believe it invades the attorney-client privilege

and it’s not part of the fact investigation which is

open for discovery here.

Bosman: What do you mean it’s not part of the

fact investigation that is open for discovery here?

What are you talking about?

Spagnoli: I mean that her advising the school

district as to whether

Bosman: (Indiscernible simultaneous speech)

unless I can see you. You want to put your

camera on for a minute?

Spagnoli: Please don’t — I’m going to make my

objection. Please don’t interrupt me while I'm

making my objection.

Bosman: I can’t — I don’t even know that it’s you

talking because I can’t see you, so I'm not going to

respond to that.

Spagnoli: Okay. I’m going to object.

Bosman: Ms. Bowe, could you please advise —

Spagnoli: Hold on. Hold on just a second

(indiscernible - simultaneous speech).

Bosman: —the point in time that you called the

school district after you completed the

investigation —

Spagnoli: (Indiscernible simultaneous speech)

report is not part of the fact investigation and it

would be attorney-client privilege.

Bosman: Certify the question. Certify the

question.

(Bowe Deposition, Dkt. 207-2, pgs. 91-92, at lns. 12-20).

* * *

Bosman: Have you ever advised the school

district with respect to Title IX and sex

discrimination based upon sexual orientation or

perceived orientation?

Spagnoli: Objection. Attorney-client privileged

Ferrara: Same objection. Instruct the witness

not to answer.

(Bowe Deposition, Dkt. 207-2, pg. 140, at lns. 1-17).

These questions were improper. With this line of questioning, Bosman

sought to air out the legal advice Bowe had given to a client. Ferrara

was right to object. As a result, Spagnoli’s objections are sustained.

A similar analysis applies here. Bosman broadly asked Hoffman

for information communicated between herself and K.S.:

Bosman: Did you make any effort to provide [K.

S.] with a counseling during the time that you

were conducting this so-called investigation?

Ferrara: Objection to the form, characterization.

You can answer.

Spagnoli: Objection. I believe this is beyond the

question of fact investigation. Based on attorney-

client privilege I direct the witness not to answer

attorney conversations about recommendations

she made to the School District.

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pg. 80-81 lns 10-22).

This question was broad enough to potentially cause the witness

to reveal an attorney-client communication. In contrast, Spagnoli’s

objection was specific, and the direction was narrow—do not share

attorney-client communications in the answer. Thus, the objection is

sustained.

Bosman also questioned Hoffman about her communications with

anyone:

Bosman: Did anyone tell you that [Marissa Rys]

was untruthful in any matter after the

investigation?

Ferrara: Objection to form. That’s something to

be taken as privileged.

Bosman: I’m sorry?

Ferrara: Attorney-client privilege.

Bosman: Whether or not someone told her she

was untruthful after the

Ferrara: Absolutely.

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pgs. 121-122, lns. 15 – 2).

Leading up to this question, Bosman asked Hoffman whether she

thought K.S. was truthful, whether she thought Rys was truthful, and

whether she was aware if Rys had a history of not telling the truth. The

witness answered all of these questions. (Hoffman Deposition, Dkt. 207-

1, pgs. 120 -121). With that context, the above question may have called

for a privileged communication, so the objection is sustained. There was

no direction to the witness not to answer the question, so the motion to

compel is denied on this score.

But not all of Bosman’s question sought to intrude on the

protections of attorney-client privilege. Specifically:

Bosman: Did you have any discussions with your

co-counsel regarding sexual orientation or

perceived sexual orientation of Marissa Rys at

any time?

Ferrara: Objection.

Spagnoli: Objection.

Ferrara: Attorney-client privilege and work

product.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pgs. 140, at lns. 10-17).

Here, Bosman’s question did not ask for the content of any

communication. It called for a yes or no response. The answer to that

question may reveal attorney work product and mental impressions,

but it also may reveal a bias. While the Court finds that Spagnoli and

Ferrara’s objection was well founded, the Court overrules that objection.

A similar analysis applies to Bosman’s questions as to the School

District’s clerk:

Bosman: And who’s Julia Scranton?

Bowe: The district clerk.

Bosman: So I noticed there’s a lot of emails

copied to her. Why would you be copying Julia

Scranton?

Bowe: She has a role in the school district and

personnel and board matters. So she obviously

assists Dr. Grimm in preparing correspondence

notices. Also the Board overseeing resolution

formation, et cetera.

Bosman: Did you represent Julia Scranton as a

client at any time?

Bowe: Individually? No.

Bosman: As a member of the school district?

Ferrara: Objection. (Indiscernible) invade

attorney-client privilege. Instruct the witness not

to answer.

Bosman: You can answer.

Ferrara: Oh. No. She can't answer, A.J. I'm

instructing —

Bosman: Oh. You’re directing her not to answer

that?

Ferrara: Yeah. You’re asking her to invade

attorney-client privilege.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pgs. 141-142, at lns. 4-1).

The question called for a yes or no answer. The fact of

representation may arguably be pertinent to a claim of privilege and

whether privilege has been waived. That said, as the witness identified

Scranton as the district clerk, as well as listing some of her duties, it is

clear that Scranton is part of the School District’s leadership team such

that including her in counsel communications could not fairly be argued

to have waived any privilege. Still, the witness should have been

allowed to answer the question. The Court overrules the objection.

3. Expert Opinion

Ferrara objects to several of Bosman’s questions, arguing that the

questions called for Hoffman and Bowe, who are testifying as lay fact

witnesses, to give expert opinion. In contrast, Bosman argues that none

of her questions calls for an expert opinion. The Court now addresses

those contentions.

“Opinion testimony by lay witnesses is governed by Fed. R. Evid.

701.” In re Illusions Holdings Inc., 189 F.R.D. 316, 317 (S.D.N.Y. 1999).

That rule provides that if a “witness is not testifying as an expert,” their

opinions or inferences are “limited to those opinions or inferences which

are (a) rationally based on the perception of the witness, (b) helpful to a

clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701.

On the other hand, expert witness testimony is governed by Fed.

R. Evid. 702. In re Illusions Holding Inc., 189 F.R.D. at 317. That rule

provides that “if scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact

in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an

opinion or otherwise.” Fed. R. Evid. 702

“The distinction between a lay witness’ and an expert witness’

opinion is that a lay witness provides an opinion resulting from a

process of reasoning familiar with everyday life, while expert testimony

results from a process of reasoning which can be mastered only by

specialists in the field.” Lamere v. New York State Off. For The Aging,

223 F.R.D. 85, 88 (N.D.N.Y. 2004) (cleaned up).

Understanding the differences between lay and expert testimony,

the Court parses through Ferrara’s objections. The first relevant

colloquy begins:

Bosman: Did you ever learn the elements of

school law with respect to reporting allegations of

abuse or neglect?

Ferrara: Object to form. Instruct the witness not

to answer. Not here to give legal opinion. Here to

testify to facts what she did in this case.

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pg. 44, at lns. 16-24.)

The question did not call for an opinion. It asked for a fact about

Hoffman’s law school education. Thus, the Court overrules the objection.

The next colloquy pertains to Hoffman’s training on “developing

sexual identity.”

Bosman: And how many of those [trainings]

have involved, I guess you would call it,

developing sexual identity?

Ferrara: Objection to form. If you understand

the question you can answer.

Hoffman: I’m not sure what you mean by

developing sexual identity.

Bosman: That’s what happens with adolescents,

correct?

Ferrara: Objection to form. If you know what

that is. That's a medical question.

(Hoffman Deposition, Dkt. 207-1, pg. 84, at lns. 6-17).

Again, this question did not ask for an expert opinion. The

question, while poorly phrased, seems to ask whether any of the

trainings Hoffman pertained to the sexual development of adolescents,

which does not call for expert opinion.

But even reading the second question in a vacuum (a better

phrasing would be do adolescents develop sexually) it still does not call

for expert testimony. Answering the second question does not require

specialized training to understand that teenagers have some level of

sexual development. That said, the Court overrules the objection.

Turning to Bosman’s deposition of Bowe, Ferrara objected to

questions he felt called for expert testimony. The first relevant colloquy

begins:

Bosman: What is your understanding of the

obligation of the school district to make reports to

Child Protective Services if they believe that a

teacher is, quote-unquote, grooming a student?

Ferrara: Objection to form. Again, you’re calling

for expert testimony. She’s here as a lay witness,

A.J.

Bosman: She’s a lawyer.

Ferrara: Doesn’t— she’s not an expert for you in

this —

Bosman: I'm not asking her as an expert. I’m

asking her understanding.

Ferrara: Yes. You are. You’re asking for a legal

opinion.

Bosman: No. I’m not.

Bosman: Do you have a question — do you have

an understanding of the question, Ms. Bowe?

Ferrara: I’m directing the witness not to provide

expert testimony.

Bosman: Okay.

Ferrara: You can certify the question.

Bosman: Not as an expert. Not as an expert. As

a lay witness.

* * *

Ferrara: Melinda, you can answer that question

if you have knowledge that came to you outside of

your profession as a lawyer. (Indiscernible)

knowledge as a lawyer, then she’s asking for an

expert opinion, and I’m going to direct you not to

answer.

Bosman: You can answer.

* * *

Bowe: It would depend on the definition in the

law. So, as I said to you before, yes. School

personnel are mandated reporters for the purpose

of child abuse. So it would involve looking at the

definition of what child abuse was to decide

whether that is something that needs to be

reported or not. That’s my working knowledge

and not specific to the circumstances here in this

matter.

(Bowe Deposition, Dkt. 207-2, pgs. 94-95, at lns. 1-25).

This objection is moot. To sum up, Ferrara objected to the

question, arguing that it called for an expert opinion. Bosman then

clarified that she was seeking a lay witness understanding, and

eventually the witness answered the question. In other words, any

request for relief concerning this question is moot.

The next relevant disagreement pertains to lawyers’ obligation to

their clients. Bosman began this line of questioning:

Bosman: Does an attorney have an obligation to

be honest with witnesses when they interview

them?

Ferrara: Objection to form. Now you’re asking

for expert testimony. I’m going to direct the

witness not to answer. She’s not here to be an

expert to you or your client.

Bosman: (Indiscernible simultaneous speech).

No. You don’t need to go on and on. You’re taking

up too much time. Certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 110-111, at lns. 24-9).

Bosman also asked:

Bosman: Did you have any obligation to

Marissa Rys during the conduct of an

investigation in this matter?

Ferrara: Object to form. You can give whatever

unlegal opinion is.

[Witness indicates not understanding the

question.]

Bosman: Did you have any obligation

whatsoever to Marissa Rys during this

investigation?

Ferrara: Objection. Now you’re asking for expert

testimony. I’m going to instruct the witness not to

answer. We can certify the question and the

magistrate [judge] can make a ruling.

Bosman: As the attorney for the school district,

did you have any obligation to Marissa Rys, as

one of the employees of that school district during

the investigation of this matter?

Ferrara: Same objection. I instruct the witness

not to answer.

Bosman: Certify the question. What’s wrong

with that one?

Ferrara: You’re asking for legal opinions.

Bosman: No. No. No. I’m asking her as an

investigator.

Bosman: Do you have an obligation as an

investigator?

Ferrara: Still asking for a legal opinion and

conclusion, A.J. And I’m going to instruct the

witness not to answer.

Bosman: All right. Why don’t we just—why don’t

we just—okay. I’ll certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 116-118, at lns. 23– 11.)

* * *

Bosman: Did you have any obligation to Marissa

Rys at any time during this investigation?

Ferrara: I appreciate the soliloquy you placed on

record, A.J. We respectfully disagree with your

legal analysis, and we can certify it for the

magistrate [judge].

Bosman: Do you understand the question, Ms.

Bowe? I'm deferring to my—

Ferrara: (Indiscernible) that was a nice

soliloquy.

(Bowe Deposition, Dkt. 207-2, pg. 119-120, at lns. 20–5.)

These questions, as Ferrara noted, asked Bowe for a legal opinion.

The questions were intended to have Bowe testify as to her

interpretation of case, statutory, or regulatory law, and confirm

whether she had a legal duty to Rys while conducting the investigation.

These questions were improper, so the Court sustains the objections.

See, e.g., United States v. Patel, No. 21-CR-220, 2023 WL 2643815, at

*41 (D. Conn. Mar. 27, 2023) (“To the extent that any lay witness’s

testimony extends beyond the scope of personal perception by opining

on the legality of non-compete agreements, such testimony is

inadmissible”); Ferrari Club of Am., Inc. v. Bourdage, No. 6:12-CV-

06530, 2017 WL 1498080, at *1–6 (W.D.N.Y. Apr. 25, 2017) (finding

witness’ testimony inadmissible as lay witness testimony because it was

based on his “professional opinion”). In consequence, Ferrara’s

objections to these questions are sustained.

The same analysis applies to Bosman’s question on sexuality. This

colloquy began when Bosman asked Bowe:

Bosman: Am I correct that considering

someone’s sexual orientation or perceived sexual

orientation in conducting an investigation would

be evidence of discrimination?

Ferrara: Objection to form. Now you’re asking

for an expert opinion. Instruct the witness not to

answer.

(Bowe Deposition, Dkt. 207-2, pg. 140, at lns. 1-17).

Again, Bosman’s questioning seeks to have Bowe answer what is

and is not evidence in a lawyer’s investigation. That is impermissible

because it asks for a legal opinion. So like above, Ferrara’s objection on

this score is sustained.

Bosman later asked for Bowe’s opinion on honesty in

investigations. That colloquy went like this:

Bosman: Is it important for the investigator to

be honest with the witnesses?

Spagnoli: Objection.

Ferrara: Objection to form. You can answer if

you can. Now we’re getting into a lot of opinions

testimony.

Bowe: Yeah. Investigator, I mean, obviously

they’re trying to get to the bottom of the story and

ferret out facts.

Bosman: Is it important for the investigator to

be honest with the witness?

Ferrara: Objection to the — I’m sorry. I’m going

to object to this line of questioning. You’re asking

her for opinion testimony. She’s a non-party fact

witness. I’m going to instruct her not to answer.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 176-77, at lns. 19-11).

Bosman had no need to re-ask the question because Bowe clearly

answered it the first time. The motion to compel, on this score, is moot.

4. Impeachment Evidence

Ferrara argues that Bosman’s questioning seeks to obtain

impeachment evidence and runs the risk of creating a trial within a

trial. Bosman argues that’s not so. The Court now addresses these

issues.

Fed. R. Evid. 608 “governs the circumstances under which

evidence other than the criminal conviction of a witness may be

introduced to attack the witness’s character for truthfulness.” United

States v. Levin, No. 15-CR-101, 2016 WL 8711458, at *7 (S.D.N.Y. Jan.

8, 2016) (cleaned up). “Except for a criminal conviction under Rule 609,

extrinsic evidence is not admissible to prove specific instances of a

witness’ conduct in order to attack or support the witness’ character for

truthfulness.” Fed. R. Evid. 608(b) (cleaned up). Impeachment evidence

is not automatically admissible. See, e.g., Alaei v. State Univ. of New

York at Albany, No. 1:21-CV-00377 (BKS/TWD), 2025 WL 1549050

(N.D.N.Y. May 30, 2025) (deciding whether to admit impeachment

evidence that Defendants argued could cause a trial within a trial.) In

fact, Courts maintain wide latitude to deny impeachment evidence if it

creates a trial within a trial. See Levin, 2016 WL 8711458, at *10

(evidence introduced for impeachment purposes must not “lead the

Court down the path of a ‘trial within a trial’ on a peripheral issue.”).

Bosman pestered both Hoffman and Bowe about Bowe’s

settlement with Costello:

Bosman: Did Ms. Bowe have to pay the firm

money?

Ferrara: Objection to the form. Instruct the

witness not to answer.

Bosman: Certify the question.

Ferrara: Confidential.

Bosman: Certify the question.

(Hoffman Deposition, Dkt. 207-1, pg. 76, at lns. 18-23.)

* * *

Bosman: Do you know whether or not she had to

pay the firm any money?

Ferrara: Instruct the witness not to answer.

Bosman: Yes or no question.

Ferrara: She’s not going to answer.

Bosman: Certify the question.

Bosman: Were you involved at all in the

litigation with Ms. Bowe?

Ferrara: Objection.

Bosman: Certify the question.

Bosman: Were you interviewed at all in the

matter against Melinda Bowe?

Ferrara: Objection to form. First of all,

irrelevant and attorney-client privilege. Instruct

the witness not to answer.

Bosman: Certify the question.

Bosman: So Melinda Bowe moves to North

Carolina. She’s sued by your firm. You may or

may not have been interviewed regarding that.

Did you have any conversations with anyone

regarding this matter of Melinda Bowe during

the litigation?

Bosman: Object to form. Instruct the witness not

to answer. Attorney-client privilege.

Bosman: Certify the question.

Ferrara: You’re not answering.

Bosman: I certified question, you don’t have to

repeat.

(Hoffman Deposition, Dkt. 207-1, pgs. 76-77, at lns. 24-25)

* * *

Bosman: How was your lawsuit resolved with

Costello, Cooney & Fearon?

Ferrara: Objection to form. Instruct the witness

not to answer since the settlement is subject to a

confidential settlement.

Bosman: I didn't ask you how it was resolved. I

asked the witness.

Ferrara: Doesn’t matter. I’m invoking that

because it’s in the settlement agreement. It’s

confidential.

(Bowe Deposition, Dkt. 207-2, pg. 151, at lns. 13-22)

* * *

Bosman then asked Bowe about her relationship with Costello:

Bosman: Are you being represented by the

Costello, Cooney & Fearon firm pursuant to a

separate retainer?

Ferrara: Objection to form. She’s being

represented by my firm.

Bosman: I didn’t ask you. I asked the witness.

Ferrara: No. She’s not going to (indiscernible)

invades attorney-client privilege. She doesn’t

have to answer why or how she retained us.

Bosman: Are you telling her not to answer.

Ferrara: Yes.

Bosman: Certify the question.

Bosman: Did it concern you that your current

attorneys might have a conflict of interest

because they had previously sued you, Ms. Bowe?

Ferrara: Objection to form. Instruct the witness

not to answer. And that’s a completely irrelevant

question.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 151-153, at lns. 13-4).

Bosman’s questions were untethered from Bowe’s truthfulness.

During the course of Bowe’s deposition, Bowe told Bosman that the

conflict between herself and Costello arose from Costello’s decision to

distribute money to Bowe and later seek to recoup it. (Bowe Deposition,

Dkt. 207-2, pg. 23-24). Nothing there can be construed as relating to

deceit, falsehood, or dishonesty. Worse yet, Bosman is trying to rely on

mere unadjudicated allegations to prove untruthfulness, which is

impermissible. See In re UBS AG Sec. Litig., No. 07-CV-11225, 2012 WL

4471265, at *17 n.17 (S.D.N.Y. Sept. 28, 2012) (cleaned up) (“However,

because such allegations are taken directly from uncorroborated

allegations embedded in a complaint in another action, the Court will

not consider them.”). The lawsuit between Costello and Bowe is not

probative of truthfulness, and therefore not discoverable, and will only

confuse the issues by creating a trial within a trial. For that reason, the

Court sustains all of Ferrara’s objections to Bosman’s questions.

5. Remaining Challenges

The Court now examines the remaining objections. These

objections can be categorized into three broad categories: asked and

answered, argumentative, and clarification objections.

The Federal Rules of Evidence do not recognize “asked and

answered” as an objection. Thompson v. Workmen’s Circle Multicare

Ctr., No. 11-CV-6885, 2015 WL 4591907, at *5 (S.D.N.Y. June 9, 2015).

So objections made on this ground, at depositions, are improper. Yet

Ferrara objected to several questions arguing that they were asked and

answered:

Bosman: At any time during this investigation,

was your firm doing anything other than

representing the Clinton Central School District?

Ferrara: Asked and answered repeatedly. The

witness is instructed not to answer again.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pg. 115-116, at lns. 22-4)

* * *

Bosman: What is “general supervision” as

opposed to “specific supervision”?

Ferrara: Objection. Has been asked and

answered. I’m going to instruct the witness not to

answer again.

Bosman: What does “general supervision” mean?

Ferrara: Same objection. That’s been asked and

answered. I’m going to instruct the witness not to

answer.

Bosman: Certify the question.

Bosman: What is your – in your mind, the

distinction between general supervision and your

overview, which allowed you to revise the report

repeatedly?

Ferrara: Objection. That’s been asked and

answered. Instruct the witness not to answer.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2 at 158-159, lines 19-14).

* * *

Bosman: You don’t know who provided that

training?

Ferrara: Objection. Asked and answered.

Bowe: I received training with regard to gender

identity at numerous conferences and programs.

It’s not been from one particular company or

entity. I don’t recall.

Because “asked and answered” objections are not recognized by

the Federal Rules of Evidence, the Court overrules all of Ferrara’s

“asked and answered” objections.

The same analysis applies to Ferrara’s argumentative objection.

Specifically, the colloquy went so:

Bosman: You weren’t independent from the

school district at any time during this

investigation, correct?

Spagnoli: Objection to form.

Ferrara: Form. I instruct the witness not to

answer. That’s argumentative.

Bosman: Certify the question.

(Bowe Deposition, Dkt. 207-2, pgs. 114-115, at lns. 24-5).

Rule 30 does not recognize an “argumentative” objection. Yet it is clear

that the opening question in this colloquy was intended to harass or

annoy the witness. But the remedy was not to object, it was “to adjourn

the deposition and promptly seek judicial assistance pursuant to Rule

30(d)(3)(A).” Scott-Iverson v. Indep. Health Ass’n, Inc., No. 13-CV-451V,

2017 WL 35453, at *4 (W.D.N.Y. Jan. 4, 2017). But Ferrara failed to do

so. As a result, Bowe should have answered the question. The Court

overrules the objection.

Finally, this Court denies Ferrara’s after-the-fact-attorney-client-

privilege rationale for interrupting Bosman’s questioning. Ferrara

interrupts Bosman numerous times:

Bosman: And what type of conduct did you

understand you were investigating?

Bowe: Improper actions by a teacher with a

student.

Bosman: Such as what?

Ferrara: Are you asking what they asked for the

investigation or throughout the investigation?

Bosman: Do you understand the question, Ms.

Bowe?

Bowe: Why don’t you ask it again?

Bosman: Could you read back the question,

Gina?

* * *

Ferrara: Again, A.J. are you talking about when

she was initially asked to do an investigation or

during the course of the investigation?

Bosman: I asked the witness if she understood

the question. She asked it to be read back. I had

it read back. Do you understand the question?

Ferrara: So you don’t want to provide

clarification for the witness?

Bosman: No. That’s for you, P.G. and I don’t

have to do it for you.

Ferrara: Okay. Then I’m going to instruct the

witness not to answer until you clarify the

question.

Bosman: Certify for the record.

(Bowe Deposition, Dkt. 207-2 at 47-49, lns 24-12)

* * *

Bosman: What was the conduct that you

understood that you were investigating, Ms.

Bowe?

Ferrara: At what time, A.J.?

Bosman: Do you understand the question?

Ferrara: No, A.J. To clarify, at what point you're

asking —

Bosman: I'm not — it's not you, P.G. I'm not

asking you.

Ferrara: (Indiscernible) I’m going to instruct the

witness not to answer because you’re asking a

misleading question.

Bosman: Certify the question. Do you have an

understanding of what type of conduct you were

investigating?

Ferrara: Same objection, A.J. Will you clarify?

Bosman: You can answer. Go ahead.

Ferrara: No. She can’t until you clarify the

question, A.J. It’s a reasonable request.

Bosman: Do you understand the question, Ms.

Bowe?

Bowe: It would be clearer if there was a point in

time.

Bosman. At what point in time would you like to

start?

Bowe: You asked what point —

Bowe: I’m sorry. I can’t hear if there’s an

objection or not.

Ferrara: Yeah. So, A.J., you’re asking a question,

please ask a question with a clarification with a

time period.

Bosman: Okay. You can answer.

Ferrara: No. You can’t. I'll instruct the witness

not to answer.

Bosman: Come on. What are you trying to do

this for? What point in time would you like to

start with, Ms. Bowe, that you understood what

kind of conduct you were investigating?

Ferrara: A.J., please ask the question properly

and the witness can answer.

Bosman: All right. I'm going to call the judge.

I’m not going to put up with this, P.G. It’s

ridiculous.

Ferrara: No. It’s not.

Bosman: You’re instructing the witness not to

answer under these circumstances you know is

improper.

Ferrara: A.J., your question’s improper. You’re

trying to mislead the witness and confuse the

witness. She made a reasonable request.

Bosman: Wait a minute. Wait minute. Wait a

minute. Ms. Bowe, do you feel misled?

Bowe: I told you that it would be beneficial to

have a point in time.

Bosman And I asked you what point in time

would you like to begin with?

Bowe: But I’m not understanding —

Ferrara: (Indiscernible simultaneous speech.)

Bosman: I'm asking the question. What point in

time did you have an understanding of what

conduct you were investigating?

Ferrara: That’s not the same question, A.J. You

can ask her what they asked her to investigate

when they initially contacted her. That’s why —

Bosman: Well, you can ask her that when you

ask her questions.

Ferrara: A.J., (indiscernible) answer your

questions. If you want to call the (indiscernible),

I’m more than happy to discussion with them

about —

Bosman: Let’s go off the record. Let’s go off the

record.

The Proceedings Officer: Let me take you off

the record. We’re off the record at 1:24 p.m.,

Eastern Standard Time.

The Proceedings Officer: We are back on the

record at 1:41 p.m., Eastern Standard Time.

Counsel, you may proceed.

Bosman: Could you read back the last question

for me, please, Gina?

The Proceedings Officer: Yes. Give me one

second and I will pull it up for you.

Bosman: I hear some noise in the background. I

don’t know where it’s coming from.

Ferrara: I suspect that’s the landscaper outside

my window.

The Proceedings Officer: I think the question

was, because you were going back and forth:

(Readback as requested.)

Bosman: Okay. So for the record, I contacted

Judge Katz’s chambers and he’s not available this

afternoon. So I’m going to certify the last three

questions which the witness was directed not to

answer.

(Bowe Deposition, Dkt. 207-2 at 49-53, lns 14-19)

Ferrara never objected based on privilege so his post hoc

rationalization for this behavior is completely unpersuasive. See

(Witnesses Memo of Law, Dkt. 223-1 at pg. 9) While it would have been

easier for Bosman to provide a time period to the witness as Ferrara

requested, Bosman was not required to do so. More importantly, none of

the objections interposed by Ferrara were appropriate, and the

directions not to answer the questions were improper. The Court

overrules the objections, and the questions (which unnecessarily include

obvious duplicates) should have been answered.

B. Re-deposing Bowe and Hoffman

The Court finds that Bosman should not be allowed to re-depose

the witnesses. Discovery needs to be relevant and proportional to the

needs of the case. Here, Bosman cannot show that recalling both non-

party witnesses and asking the questions that should have been

answered would yield information relevant and proportional to this

case. As a result, the Court denies the motion to compel

notwithstanding its rulings on the various questions.

Parties can obtain discovery “relevant to any party’s claim or

defense and proportional to the needs of the case.” Fed. R. Civ. P.

26(b)(1). If the information a party seeks is not relevant or proportional

to the needs of the case, district courts can deny a party’s request to

compel the redeposition of a non-party witness. Cf. United States Sec. &

Exch. Comm’n v. Collector's Coffee Inc., 338 F.R.D. 309, 317 (S.D.N.Y.

2021) (denying a party’s request to depose non-party witnesses in part

because the request was disproportionate); see also Concord Boat Corp.

v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996) (“the status of a

witness as a non-party to the underlying litigation entitles the witness

to consideration regarding expense and inconvenience”). Courts also

examine “the importance of the issues . . . the amount in controversy,

the parties’ relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discovery outweighs its

likely benefits.” Fed. R. Civ. P. 26(b)(1).

To start the Court compiles all the questions the witnesses should

have answered.

• Hoffman:

o Was that an attorney-client conversation that you had with

Melinda Bowe?

o Did you have any understanding that Melinda Bowe was

your client?

o Did you have at any time an understanding that Melinda

Bowe was seeking legal advice from you?

o Did you provide Melinda Bowe legal advice at any time?

o Did you ever learn the elements of school law with respect to

reporting allegations of abuse or neglect?

o And how many of those [trainings] have involved, I guess

you would call it, developing sexual identity?

o That's what happens with adolescents, correct?

• Bowe:

o Such as what?

o What was the conduct that you understood that you were

investigating, Ms. Bowe?

o Did you have an understanding of what type of conduct you

were investigating?

o What point in time did you have an understanding of what

conduct you were investigating?

o Did you have any discussions with your co-counsel regarding

sexual orientation or perceived sexual orientation of Marissa

Rys at any time?

o [Did you represent Julia Scranton] As a member of the

school district?

o At any time during this investigation, was your firm doing

anything other than representing the Clinton Central School

District?

o What is “general supervision” as opposed to “specific

supervision”?

o What does “general supervision” mean?

o What is your – in your mind, the distinction between general

supervision and your overview, which allowed you to revise

the report repeatedly?

o You weren’t independent from the school district at any time

during this investigation, correct?

With all the questions together, it is clear that allowing Bosman to

re-depose Bowe and Hoffman and ask irrelevant questions would be

disproportionate to the needs of the case. Only one of these questions

goes to the heart of Rys’ claim (“did you have any discussions with your

co-counsel regarding sexual orientation or perceived sexual orientation

of Marissa Rys at any time” is the only relevant question and it

improperly seeks privileged communications). The rest are either

duplicative, unnecessary, or wholly irrelevant. The questions lack of

relevance is important because “the greater the relevance of

information in issue, the less likely its discovery will be found to be

disproportionate.” Gilead Scis., Inc. v. Khaim, 755 F. Supp. 3d 285, 296

(E.D.N.Y. 2024). The inverse principle is true here: the relevance of the

information is low, so calling both witnesses back is disproportionate.

To end, “the ambit of relevance under Rule 26 is broad,” but “it is not

unlimited,” and continuing these depositions is “not proportional to the

needs of the case.” Rattray v. City of New York, No. 17-CV-8560, 2021

WL 5810903, at *2 (S.D.N.Y. Dec. 6, 2021) (denying motion to compel

where the request was “overly broad and unnecessary” to “show bias”).

As a result, the Court denies Rys’ motion to compel.

C. Sanctions

Courts may issue sanctions for poor attorney behavior at

depositions. Fed. R. Civ. P. 30(d)(2). The Federal Rules empower courts

to issue sanctions where “a person . . . impedes, delays, or frustrates the

fair examination of the deponent.” Id. Importantly, the text of Rule 30

does not require a party to move for sanctions. Id. This means that

Courts can, on their own, issue sanctions. See id; see also Sicurelli v.

Jeneric/Pentron, Inc., No. 03-CV-4934, 2005 WL 3591701, at *8

(E.D.N.Y. Dec. 30, 2005) (cleaned up) (“The decision to impose sanctions

against an attorney for improper conduct during a deposition is within

the discretion of the court”). But the standard remains the same. The

Court must find that the sanctionable-party’s conduct impeded,

delayed, or frustrated the deposition. See, e.g., Chawla v. Metro. Oral

Surgery Assocs., P.C., No. 11-CV-6248, 2014 WL 4678023, at *7

(E.D.N.Y. Sept. 19, 2014) (sanctioning an attorney under Fed. R. Civ. P.

30(d)(2) where the sanctioned attorney’s conduct impeded, delayed, and

frustrated the deposition).

The obstructionist behavior—of both lawyers —abounds the

record. For example:

Ferrara: Objection to form. If you know what

that is. That’s a medical question.

Bosman: I object to counsel interfering with the

deposition. Asking you again to restrict your

objection —

Ferrara: I instruct the witness not to answer.

Bosman: I note for the record counsel is

constantly interrupting me.

Ferrara: Go ahead and finish.

Bosman: I’m asking you to please restrict your

objections to form or privilege, without making

speeches.

Ferrara: And I would request counsel to ask

pertinent questions that have been permitted by

the court. You’re now asking for medical

testimony.

(Hoffman Deposition, Dkt. 207-1, pgs. 84-85, at lns. 15-7).

* * *

Ferrara: That’s a different question. You can

answer it.

Bosman: I would ask counsel to stop with the

comments, please.

Ferrara: Then why don’t you ask a question that

can be understood, and I won’t have to object.

(Hoffman Deposition, Dkt. 207-1, pg. 95, at lns. 3-9).

* * *

Bosman: Wait.

Ferrara: Let her answer the question.

Bosman: Let me ask the question. Otherwise

we’ll be here until midnight.

Ferrara: No, we’re not.

Bosman: Answer the question directly. If you

keep going on into something I didn't ask, I have

to ask it again.

Ferrara: Let her answer your question.

Bosman: You be quiet.

Ferrara: You are not going to do this to my

witness. You’re going to allow her to finish the

question. If you’re not going to let her do that

then we'll be done today.

Bosman: She’s your witness or your client?

Ferrara: She’s both

Bosman: She’s my witness. Your client. Go

ahead.

Ferrara: My client can finish her answer if you

can remember the question.

(Hoffman Deposition, Dkt. 207-1, pgs. 118-19, at lns. 8-8).

* * *

Spagnoli: Not allowing the witness to finish her

answer to the question.

Bosman: Stop it, Charles. That’s it, I can’t

complete the deposition. Counsel interrupting my

deposition, I’m not able to conclude it without

interruption, so I’m asking the witness to refer to

a specific page on a document. And he is insisting

that she go forward. This would cause us to go

back through the document and I am objecting to

counsel’ interference yet again.

Ferrara: Yes, let the record reflect the witness

has not completed her answer to the previous

question and would like the opportunity to finish

her answer to the question.

(Hoffman Deposition, Dkt. 207-1, pg. 139, at lns. 4-22).

* * *

Bosman: Stop it, counsel.

Ferrara: No, you stop it.

Bosman: I want this witness to answer the

question, not you.

Ferrara: I want you to ask a question that’s

relevant. This has nothing to do with the factual

investigation or the final report. You’re asking for

her opinion and her legal conclusion. She’s not

here for that.

(Hoffman Deposition, Dkt. 207-1, pg. 154, at lns. 16-25).

* * *

Spagnoli: I’m making an objection. And it was

well founded, as you know.

Bosman: No. It was not well founded at all. It

was typical of you, but it was not well founded.

I’m going to show you —

Spagnoli: Let’s stay away from personal

comments. Okay, Ms. Bosman?

Bosman: Ditto. Yeah. I’m ready. Let’s look at —

does an attorney have an obligation to be honest

with witnesses when they interview them

Ferrara: Objection to form. Now you’re asking

for expert testimony. I’m going to direct the

witness not to answer. She’s not here to be an

expert to you or your client.

Bosman: (Indiscernible simultaneous speech) no.

You don’t need to go on and on. You’re taking up

too much time. Certify the question. Did you or

Ms. Hoffman represent to witnesses in this

matter during the investigation that you were

independent?

Ferrara: Objection to form. You can answer, to

your knowledge.

Bosman: Well, of course it’s to her knowledge.

Ferrara: Well, no. We don’t ask the question that

way. Why don’t you preface the question that way

and I won't have to object.

Bosman: Note my objection to the continuing

interruption and comments of counsel.

(Bowe Deposition, Dkt. 207-1, pgs. 110-111, at lns. 13-22).

* * *

Ferrara: There’s no waiver, A.J.

Bosman: There’s nothing but form objections,

P.G. So you get to object to form. What you just

did —

Ferrara: Object to form objections on the record,

A.J. I can't help it if you’re asking improper

questions.

Bosman: You just gave your client legal advice

on the record, P.G.

Ferrara: I did not give her legal advice on the

record.

Bosman: We’ll see.

(Bowe Deposition, Dkt. 207-1, pg. 166, at lns. 3-14).

Sadly, these examples are not an exhaustive list. In fact, the

record shows the questions asked in bad faith and in violation of the

Court’s Discovery Order, the numerous disruptions, speaking

objections, ad hominem attacks, and instructions not to answer derailed

both depositions. See, e.g., Morales v. Zondo, Inc., 204 F.R.D. 50, 54

(S.D.N.Y. 2001) (imposing sanctions for among other things

“instructions not to answer, instructions how to answer, colloquies,

interruptions, and ad hominem attacks” that disrupted the deposition.)

That conduct is sanctionable.

Both Bosman’s and Ferrara’s conduct is equally sanctionable.

Individually Ferrara’s conduct is sanctionable. Ferrara consistently

made asked and answered objections—which counsel knows (or should

know) the Federal Rules do not recognize. See, e.g., Cordero v. City of

New York, No. 15-CV-3436, 2017 WL 2116699, at *8 (E.D.N.Y. May 12,

2017) (imposing sanctions where among other things the attorney

lodged a plethora of speaking and asked and answered objections and

repeatedly instructed the witness not to answer questions). Worse still,

Ferrara asked Bosman for clarifications but “it is not counsel’s place to

interrupt if a question is perceived to be potentially unclear to the

witness.” Veckinburg v. Equifax Credit Info., No. 04-CV-673, 2005 WL

8160002, at *2 (E.D.N.Y. Dec. 19, 2005).

Bosman’s behavior was no better. Although she was the

questioner, Bosman’s questions seemed tailor made to “frustrate the

examination of the deponent.” Fed. R. Civ. P. 30(d)(2). Several of her

questions ran roughshod over this Court’s Discovery Order. Many were

intended to plainly invade attorney client and work product privileges.

The endeavor to extract information about a clearly irrelevant

confidential settlement of an unrelated lawsuit was indefensible.

Bosman’s statements on the record seem to indicate her belief that

there were no limitations on the questions she could ask. All in all, both

lawyers engaged in conduct that is sanctionable.

This conduct is why the Court is sanctioning both attorneys.3 To

be sure, “courts in the Second Circuit have declined to impose sanctions

based solely on voluminous, unwarranted, and argumentized objections

where opposing counsel was not prevented from completing the

deposition.” Cordero v. City of New York, No. 15-CV-3436, 2017 WL

2116699, at *6 (E.D.N.Y. May 12, 2017). Further, courts have declined

to impose sanctions “where heated exchanges among counsel during the

deposition . . . did not significantly frustrate the progress of the

examination.” Hague v. Celebrity Cruises, Inc., No. 95-CIV-4648, 2001

WL 546519, at *3 (S.D.N.Y. May 23, 2001). But that is not what we

have here. Before this Court is the conduct of two attorneys who

engaged in ad hominem attacks, gave long winded speeches, and

3 The sanctions the Court imposes are monetary and “do not dispose of any claim or

defense in this action,” so it has “the authority impose” sanctions. Syntel Sterling

Best Shores Mauritius Ltd. v. TriZetto Grp., 328 F.R.D. 100, 118 (S.D.N.Y. 2018).

interrupted each other at every turn. See Juice Creative Grp., LLC v.

UncommonGood, Inc., No. 3:22-CV-01175, 2025 WL 2083210, at *6 (D.

Conn. July 24, 2025) (imposing sanctions where the attorney made long

winded speeches, engaged in unacceptable behavior, and interrupted

the other attorney). “There is a duty imposed upon counsel to deal fairly

and sincerely with . . . opposing counsel so . . . that actions may be

litigated in an orderly manner.” Learning Int’l, Inc. v. Competence

Assur. Sys. Inc., No. 90-CV-2032), 1990 WL 204163, at *3 (S.D.N.Y. Dec.

13, 1990) (cleaned up). This Court includes a link to Civility in

Litigation: A Voluntary Commitment “as a reminder of your duties and

liberties as an attorney.4 Because both attorneys seem to have forgotten

such an important aspect of practice, the Court sanctions both attorneys

$500 (payable to the Clerk of the Court) as a helpful reminder and

future deterrent.

4 Northern District of New York. ATTORNEY ADMISSIONS

https://www.nynd.uscourts.gov/attorney-admissions (last checked October 2, 2025).

IV. CONCLUSION

WHEREFORE, based on the findings above, it is hereby

ORDERED, that Plaintiffs motion to compel (Dkt. 219) is

DENIED, and it is hereby further

ORDERED, that attorneys Paul G. Ferrara and A.J. Bosman are

each sanctioned in the amount of $500.00 and their payments should be

made payable to the United States District Court for the Northern

District of New York within ten (10) days of the date of this

Memorandum-Decision & Order, unless an appeal of this Order is taken

in which case the Court stays the obligation to make payment until ten

(10) days after an Order on the appeal is entered.

November 12, 2025.

U.S. Magistrate Judge

62