Opinion
04 Civ. 9978 (CSH) (HBP).
December 18, 2007
MEMORANDUM OPINION AND ORDER
Former defendant and present non-party witness Edward Cardinal Egan objects to the Opinion and Order of Magistrate Judge Henry Pitman dated September 19, 2007 (the "September 19 Opinion"), which granted Cardinal Egan's motion for a protective order to the extent that "any questioning of Cardinal Egan shall be done by written questions and shall be limited to a total of 25 questions . . . without prejudice to a further application by plaintiff to conduct the oral examination of Cardinal Egan upon a showing of good cause." September 19 Opinion at 14. Cardinal Egan contends in his objection that he should not be deposed at all. The background of the case is set forth in this Court's opinions reported at 2006 WL 1375232 (S.D.N.Y. May 18, 2006) and 2006 WL 3025883 (S.D.N.Y. Oct. 24, 2006), familiarity with which is assumed. For the reasons that follow, Cardinal Egan's objection is overruled and Judge Pitman's Order is confirmed.
A district court reviews a magistrate judge's pretrial discovery orders to determine whether the order "is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). Judge Pitman's order, explained in his well-reasoned and balanced opinion, is neither.
Cardinal Egan stresses in his briefs that at page 10 of September 19 Opinion, Judge Pitman said that apart from Fr. Hoatson's affidavit (which has been previously discredited), "plaintiff offers no other evidence to rebut Cardinal Egan's statement that he lacks relevant, material information," and that "[t]here is no documentary evidence suggesting knowledge on Cardinal Egan's part, nor is there any circumstantial evidence that would support an inference of knowledge." Counsel for Egan interpret this language to mean that Egan should not be deposed at all, by any of the several methods available under the rules. But the quoted language sets the stage for Judge Pitman's well-founded observation in the following paragraph of his opinion that "parties to an action are ordinarily entitled to test a claim by a potential witness that he has no knowledge." Id. See, e.g., Consol. Rail Corp. v. Primary Indus. Corp., 1993 WL 364471, at *1 (S.D.N.Y. Sept. 10, 1993) ("a claim that the witness lacks knowledge is subject to testing by the examining party"). The discovery rules furnish the tools for testing. Counsel for Cardinal Egan seek to distinguish the cases Judge Pitman cited for his last-quoted observation. The question is fact-intensive. In this case, plaintiff is entitled in principle to test Cardinal Egan's professed total ignorance of Fr. Kennedy's assignment by inquiring of the Cardinal, inter alia, into the procedures followed by the Archdiocese in permitting visiting priests to serve in parishes at the times pertinent to the action.
Judge Pitman's decision to limit Cardinal Egan's deposition in the first instance to 25 written questions reflects his awareness of the concerns raised by Egan's counsel and is a properly balanced resolution, sanctioned by the discovery rules. Nor is Cardinal Egan mandated by Judge Pitman's order to answer whatever questions counsel for plaintiff puts to him. Judge Pitman's opinion recites that "in responding to the questions, Cardinal Egan may assert any objection that could be asserted in response to an interrogatory except an objection based on Local Civil Rule 33.3." September 19 Opinion at 11.
Rule 26(c), Fed.R.Civ.P., covers protective orders, to which Judge Pitman properly held Cardinal Egan was entitled in some form (given Egan's professed ignorance and the absence of contrary evidence from independent sources, "the issuance of a protective order is warranted." September 19 Opinion at 10). Rule 26(c)(3) provides that the court may order that discovery may be had by a method "other than that selected by the party seeking discovery." Rule 31 allows depositions on written questions.
Cardinal Egan's objection to Judge Pitman's order is overruled and the order is confirmed. The case is remanded to Judge Pitman for his further supervision consistent with this opinion.
It is SO ORDERED.