This post pertains to the continuing case of Harris v. Dana et al., PC-2015-3821, in which Plaintiff Johanna Harris seeks indemnification from the City of Providence for her legal expenses incurred defending against attempts to interfere with her authorized duties as a Commissioner of the Board of Licenses. At a hearing in Rhode Island Superior Court on January 26, 2016, Judge Richard Licht gave Ms. Harris permission to amend her complaint to include a cause of action under Rhode Island General Laws § 45-15-5, which authorizes lawsuits against municipalities for recovery of claims not paid within 40 days. On February 18, 2016, Ms. Harris submitted her amended complaint. The amended complaint was accepted without opposition at a subsequent hearing before Judge Licht on March 2, 2016.
Pursuant to her amended complaint, Ms. Harris has thus far subpoenaed the following individuals to give deposition testimony:
- Samuel D. Zurier, February 23, 2016
- Adrienne Southgate, March 14, 2016
- Mario Martone, March 28, 2016
- Serena Conley, April 4, 2016
- Sybil Bailey, April 11, 2016
- Lori Hagen, April 18, 2016
- Sharon Mulcahey, April 25, 2016
- Brett Smiley, May 2, 2016
- Jeffrey Dana, May 9, 2016
- Jorge O. Elorza, May 16, 2016
In response to Ms. Harris’ subpoenas, Defendants filed a motion to quash the depositions of Jeffrey Dana and Jorge Elorza, which Ms. Harris opposed. Defendants similarly filed a motion to quash the deposition of Serena Conley, which Ms. Harris likewise opposed.
On February 23, 2016, Ms. Harris commenced her deposition of Samuel D. Zurier. Defense counsel Dennis E. Carley suspended the deposition before Ms. Harris had completed her questions. Ms. Harris then moved to compel Mr. Zurier’s attendance at his continued deposition.
On March 10, 2016, Associate Justice Richard Licht of the Superior Court heard arguments on Defendants’ motions to quash, as well as Ms. Harris’ motion to compel the continuation of Mr. Zurier’s deposition. Judge Licht ruled that the depositions of Mr. Dana and Ms. Conley would go forward. Judge Licht granted without prejudice Defendants’ motion to quash the deposition of Mayor Elorza, stating that he would reconsider a future motion by Ms. Harris to take the Mayor’s deposition. With respect to Ms. Harris’ motion to compel the continuation of Mr. Zurier’s deposition, Judge Licht asked the parties to brief him on the question of legislative immunity for members of the Providence City Council.
Copied below is the transcript of the March 10, 2016 session in Superior Court before Judge Licht. Ms. Harris appeared pro se. James D. Cullen of Roberts Carroll Feldstein & Peirce appeared on behalf of Defendants.
MR. CULLEN: Your Honor, we’re here on a large number of motions, but I really think it all boils down to very similar issues across the board. So what we’re here on right now is a motion to quash and/or for a protective order as to a number of subpoenas and deposition notices, and we’re seeking to quash the subpoena issued to Mayor Elorza. We’re seeking to quash and/or protective order for the deposition of Attorney Dana, City Solicitor. We’re here also seeking a motion to quash and for a protective order relating to Serena Conley, who is a licensed administrator for the City of Providence, and we’re also here on somewhat cross motions relating to the deposition of Samuel Zurier and that deposition–
THE COURT: Don’t even clutter things up. I will get to these. Let’s deal with the deposition first and then we will do Zurier later.
MR. CULLEN: Absolutely, your Honor. I may make reference to some of what happened to Mr. Zurier’s deposition, because I think it’s relevant, but essentially we are moving to quash and a protective order related to Mayor Elorza and Attorney Dana on, relying on the Apex Doctrine. It’s a–
THE COURT: The what?
MR. CULLEN: The A-p-e-x Doctrine, your Honor. It’s a doctrine we briefed in our papers. It’s widely recognized in a large number of courts. We cited to a number of cases in our papers, including the Monti case from Vermont, which is 151, Vt 609, and the Walden case, which is a District of Rhode Island case, Federal District Court, 2008, WL 625014. And basically to layout the Apex Doctrine, it deals with high government officials, executive officials or higher officers in corporate bodies, and the idea is essentially that those people shouldn’t be troubled with a deposition unless the parties seeking to do the deposition can satisfy a number of steps, and those steps are very simple. The party must show that the deponent, or the person they’re seeking to depose, has unique and superior knowledge and that that knowledge is not available by other less intrusive means.
There are a number of factors the court often refers to in relation to the consideration of the Apex Doctrine, including the time that would be taken to do the deposition, public policy, consideration in terms of disturbance to the mayor’s role, the city solicitor’s role, and most importantly, and I think this was consistently emphasized, what other options are available. And I think the core of our argument here, your Honor, is there has been no discovery, other than the deposition of Mr. Zurier to date, no interrogatories, no request for production, no request for admission and to a law potentially far reaching, lengthy deposition to go forward in the absence of really any indication that this can’t be done using interrogatories or request for production, it’s really inappropriate at this point. We
don’t feel that Ms. Harris has done anything to justify jumping straight to the deposition of the Mayor or Attorney Dana. She should at minimum have to go through other discovery hoops, as the courts require, to show that the information she’s seeking is not available by other less intrusive means.
In addition to that, and sort of going beyond the Apex Doctrine, the topics that Ms. Harris made in her objections to our motion seem to be–
THE COURT: Well, let’s, before we get there. You’ve named three officials in the city of Providence, all of whom have important functions.
MR. CULLEN: Correct.
THE COURT: But there’s a difference between Conley and Mr. Dana. There’s a difference between Mr. Dana and Mayor Elorza. The difference is not only in their importance but their function, as the Mayor happens to be the chief executive of the City, and we all do know that he has, that any mayor has unique responsibilities, not that Ms. Conley and Mr. Dana don’t, but there’s a second distinction, so it’s not just the level of declaration, their involvement in this matter, and I know the validation of what roles mayor may not play, and we’ll come to that later, but Mr. Dana and Ms. Conley are directly involved in the activity. Ms. Conley who, and the record will show I’ve known Ms. Conley for, I can’t even tell you 30, 35 years, so I know her, and I know Mr. Dana as well, but she’s the chief administrative officer, for lack of a better term, for the Bureau of Licenses in which Ms. Harris is the Chair, and the issue that’s involved here directly involves Mr. Dana, what he did or didn’t do. And so there’s a distinction between interrogatories, we all know that. Now most lawyers, cause I get it every week here, want answers to interrogatories before they take their deposition. There’s nothing in the rules that say they have to do that, and I know you saying less intrusive means, but to be candid, interrogatories aren’t the same as a deposition. Interrogatories can be, and probably should be prepared with the assistance of counsel. A deposition, you can prepare for a deposition with counsel, but you can’t turn in a deposition to ask your counsel what should I say with this answer. Whereas you can do that for interrogatories, in a sense you go over each one and get a rough, we all know how it works, the client gives a rough answer, and then you edit it and go over it, and at the end of the day the client has to swear to it. So it isn’t rough, but it’s quite different from a deposition.
MR. CULLEN: So your Honor made a number of points, and I’ll try and address them all, and I hope I hit them all. I think, I’ll take Serena Conley first, if your Honor doesn’t mind. I think there’s a distinction between the facts underlying the cause for Ms. Harris’ indemnification claim, and her indemnification claim as she’s presented it to this Court. So there’s a question as to whether or not knowledge of what Mr. Petrarca did, what others did at the licensing board even matters to what is happening here. The question before the Court really in this case here is one: Did Ms. Harris make a proper claim for indemnification, and if so, did the City properly or improperly refuse to indemnify Ms. Harris. Based on all the information, Ms. Conley was not involved in any determination regarding Ms. Harris claim. That’s my understanding of the facts. I believe it to be true. She’s the city, license administrator for the city, so yes, she was involved in the licensing board. But in terms of the claim for indemnification, the issue actually before this Court, she had no involvement, that claim goes through various offices at the city level, including the City Solicitor’s Office and potentially the Claims Committee.
THE COURT: Well, let’s stick with Ms. Conley, and now I’ll turn to Ms. Harris. Why in the world do you need to take her, I shouldn’t say, why in the world. Make a brief offer, what we call an offer of proof. What do you believe Ms. Conley has to add with respect to your complaint?
MS. HARRIS: It’s very simple, the city has taken the position that they offered to help me thoughout my trials with Mr. Petrarca. Ms. Conley was present at every single license meeting for the last two years. Maybe she went on vacation for a week, okay. So she is, and she took notes during these meetings, so she’s probably the best witness. That’s the first thing. Second of all, she was involved in my lack of having my name sent to the Ethics Commission when I joined the License Board, and there’s correspondence back and forth between the Ethics Commission and Ms. Conley. The lawyer from the city has said that she wasn’t mentioned in the pleadings. She had nothing to do with this. That is not true. The third thing, Ms. Conley has a relationship with Mr. Petrarca, and I think I have the right to show that, because I think that there were things going on which enabled Mr. Petrarca to do what he did, and the City to take the position that they weren’t going to indemnify me.
THE COURT: Define relationship.
MS. HARRIS: I don’t mean a sexual relationship. I mean a friendship relationship.
THE COURT: That in and of itself, I’m not going to prejudge you. Of course you would know Mr. Petrarca, because all you have to do is read the newspaper to know that Mr. Petrarca appears before, you know, probably as much as any other lawyer. He’s there frequently. So you cannot, it’s just like every lawyer who appears on the motion calendar certainly knows Mr. Rampone, who deals with them in many ways more than they do me, but that’s neither here nor there.
MS. HARRIS: That’s what I mean.
THE COURT: I get what you’re saying.
MS. HARRIS: Yes, she is a crucial person.
THE COURT: She has a right to prove her claim. I mean part of her claim is that she was seeking help, and maybe she didn’t artfully ask in the right way, maybe it doesn’t make a full claim for indemnification. I don’t know what her claim is. It hasn’t been fleshed out, at least before the court. I have trouble understanding why Ms. Conley wouldn’t be — wouldn’t be an appropriate person to depose.
Now, when you come to the limitations on the questions and other things as you mentioned, subject matter, that’s a second question, but I see no reason Ms. Conley shouldn’t be deposed. I would say, Ms. Harris, again, it’s not my job to be your lawyer, but if you’re talking about documents and other things, usually a lawyer would ask for a request for production of documents before we do a deposition because then you would be questioning about the document.
MS. HARRIS: Can I answer that?
THE COURT: You certainly can.
MS. HARRIS: Okay. Two things; first, of all, the issue that I should do interrogatories and request for documents is taken as harassing, because the city has denied every single thing that I have stated. Everything I’ve asked for, they deny it. And they would do that in interrogatories and request for documents. That’s the first thing. Second of all, as far as documents–
THE COURT: There’s a difference from interrogatories. I didn’t say interrogatories, I said documents.
MS. HARRIS: Documents.
THE COURT: And the reason I said that is because when you were saying why you were, why you needed Ms. Conley deposed, you were talking about correspondence between her and the Ethics Commission, and all I’m saying is you have a right to request that.
MS. HARRIS: No, I understand that.
THE COURT: And that’s normally — you do it your way. I would just say normally the practice would be you get those documents because you’re going to want to question her about that.
MS. HARRIS: I understand that.
THE COURT: That’s all. It’s up to you.
MS. HARRIS: Let me just answer that, this is important. I have a voluminous number of documents having to do with Ms. Conley, because I filed an APRA request, and I’ve gotten documents, so I don’t need to ask in this litigation for these documents, and that goes across the board.
THE COURT: I wasn’t aware of that.
MS. HARRIS: I understand that, so that’s why I’m telling you. So for me to ask again to the city, which I don’t think would give me anything else. I think it’s a waste of time.
THE COURT: Okay. Now, let’s go to Mr. Dana.
MS. HARRIS: Can I talk about Mr. Dana for a second?
MR. CULLEN: Before we move on, your Honor, you mentioned the issue of protective order.
THE COURT: I haven’t ruled on anything.
MR. CULLEN: I just like to comment on that but perhaps.
THE COURT: Let’s decide what we’re going to–
MR. CULLEN: That’s fine.
THE COURT: –do, and then we’ll take it step by step. Mr. Dana?
MS. HARRIS: Mr. Dana is a clear case. I had probably —
THE COURT: Just so — did you argue the motion? You argued the motion to dismiss the main case?
MR. CULLEN: Dennis Carley argued the motion to dismiss. I argued an objection to Ms. Harris first motion to amend the complaint where she was seeking to add parties, et cetera.
THE COURT: So the Court is familiar with the allegations.
MS. HARRIS: Right.
THE COURT: I just want that more on the record, because there has been a motion to dismiss and an objection to a motion to amend, and I allowed on the motion to dismiss. I granted it but gave leave to file an amendment. On the motion to amend, I found that it was not in proper form. I can’t remember precisely. But all I’m saying, it’s more for the record for the two of you, is that I am fairly familiar with the allegations that Ms. Harris has made.
MS. HARRIS: Mr. Dana, I was referred to Mr. Dana by Sam Zurier, and I met with Mr. Dana probably anywhere from an hour half to two hours, and during that meeting he said a lot of things, which I took notes on, and I have notes on those. So the first thing is I think I have the right to talk, to depose him, and find out his view on these things, because they’ve changed over time, and they certainly changed when I talked to Mr. Zurier. The second thing, I have six letters or e-mail correspondence from Mr. Dana, where he further says things. All the things that he said, I went out and interviewed the people that he mentioned, and looked for documents that he mentioned, and there’s a lot of contradictions that I think I have the right to ask him about.
THE COURT: Okay. Your response?
MR. CULLEN: Your Honor, in terms of Mr. Dana, if I can I address the Apex Doctrine argument. You know, there’s nothing to add on that front. I certainly have a lot to add on the issue of a motion for a protective order relating to Mr. Dana, and I’m happy to elaborate on that now or we can hold, but it’s somewhat similar across the board.
THE COURT: Now, why do you need to depose Mayor?
MS. HARRIS: Well, unfortunately, it’s my understanding that the Mayor is the decision maker in this case. In other words, it’s not Mr. Dana that’s deciding not to pay me. It’s not Ms. Conley, it’s the Mayor, and my contention is that he is not paying, or ordering me not to be paid, for reasons that are improper and punitive, and I have a lot of things that I will be able to offer as proof of that theory but I need to depose him.
THE COURT: Here’s what I rule, just as to the three deponents: You may be, you’re allowed to depose Ms. Conley. You’re allowed to depose Mr. Dana. At this stage, I’m not authorizing the deposition of the Mayor. That’s without prejudice. You can renew that.
I am familiar with the Apex Doctrine, and your supposition may be that the mayor is, clearly the Mayor is the decision maker on all matters if he chooses, subject to the city charter the council has, but at this stage without seeing more that’s actually developed in your case, which will come from the documents or these depositions. I am not prepared to authorize. Do you have a protective order? Is this a motion to quash?
MR. CULLEN: It’s a motion to quash and motion for protective order.
THE COURT: So as to the mayor, I am granting the motion to quash without prejudice to Ms. Harris to renew it at a time, at another time when this case develops, but I am denying it. I am denying the motion to quash the depositions of Mr. Dana and Ms. Conley.
Now, let’s turn to protective orders. What are you seeking protection on?
MS. HARRIS: Can I make one comment on what you just said? Can I say one more thing?
THE COURT: Say whatever you like.
MS. HARRIS: Okay. Because something has happened since we made all these motions, and I just want to bring this to your attention. My theory of the case is that the mayor is making this decision because he was angry at me at first for a lot of things that I did in the license board.
Two days ago the City Council hired a former Attorney General to do an investigation of the licensing board. All of the things, well, I shouldn’t say all the things, but a lot of things this former Attorney General, who’s now in private practice, is going to be investigating are the exact same things that I have been complaining about for the last year. My point is that I think since the city has asked for a jury trial they’ve denied every single thing that I said personally. The fact that there’s now an investigation of the licensing board, I think I have the right to ask the mayor some questions.
THE COURT: Not yet. Maybe, maybe not, and the fact that there is — which Attorney General is it?
MS. HARRIS: Pine. Mr. Pine.
THE COURT: Okay. The fact that, you know, their — that investigation may–
MS. HARRIS: Help me.
HE COURT: –address your case as we go down the line or not. But I have to deal with it. You’re dealing, you know, a larger universe than I am. I deal with, you’re dealing on a macro level, dealing with the Board of Licenses and interactions of City Hall. I deal with specific cases.
I understand your argument that maybe they didn’t, maybe they didn’t defend you because you were complaining about things that would be inappropriate. I don’t know whether they did or didn’t, but that seems to be partially your argument, but that’s not really, I mean you’re entitled to litigation, and it’s an important avenue, so I’ve been dealing with a much more narrow question. I’m not opening a full investigation into the Bureau of Licenses, that’s not my job.
MS. HARRIS: I understand that.
THE COURT: And you understand that. I stand by what I said. Now, what are you seeking to protect?
MR. CULLEN: The protective order, your Honor, is very simply, I will ignore Mayor Elorza, that’s irrelevant. The protective order, related to the topics that can be addressed, to Mr. Dana, Ms. Conley. Mr. Zurier, if his deposition is to go forward. I’ll get to that. And frankly, we’re looking for some ground rules as to any deposition. We’re making witnesses available for a deposition and Ms. Southgate, one of the city solicitors, is being made available as we speak for a deposition at some point next week, I believe. And I think, your Honor hit on the point, when you were just responding to Ms. Harris a few minutes ago, when you talked about the universes that we’re dealing with here. I think what’s happening is Ms. Harris view of this case is much bigger than what is really before the Court. And I think that’s illustrated to some extent by Mr. Zurier’s deposition, but also by some of her comments today. She’s really trying her concerns about the running of the city and the running of the licensing board in a forum which is this case, which is inappropriate. And I think in Mr. Zurier’s deposition, her sort of overreaching became fairly clear, you know, Mr. Zurier early in the deposition, and I have a copy of the transcript here, your Honor, and I know I provided some excerpts of it and I can provide to you if you wish.
THE COURT: Well, the problem I had was that between moving up and down, and in addition to clearing everything off my desk when I’m away, they have to clean my office. I had these in a prominent place, papers that were filed last week, and I went to look at them today and they weren’t there, so I’m not accusing anyone. I’m only accusing myself in this issue, having to get my office ready to be repainted because of the flood, then I misplaced them.
MR. CULLEN: So Mr. Zurier earlier in his deposition, I think between pages 7 and 30, was asked a large number of questions that related to the Claims Committee at the City of Providence, how it functions, what roles various people play, and generally speaking, Mr. Carley objected a number of times to the form of the question to some of the questions, but that exact portion of the deposition went fairly smoothly. What happened after that though is really where it started to get beyond the scope of this case, and just some examples, your Honor. You know, Mr. Zurier was asked about ethics complaints that have been made against him that are totally irrelevant to this case. He was asked about billing practices at firms with whom he’s worked.
THE COURT: I will also disclose, Mr. Zurier was a law partner of mine. I think I told you that?
MS. HARRIS: You did tell me that.
MR. CULLEN: That actually came up in the course of the deposition, your Honor. He was questioned about his relationship with you. He was questioned about his knowledge of Mr. Petrarca’s legal practice, and he was questioned about his lawsuit, where he is local counsel and lawsuits brought against Brown University. He was questioned about a disagreement with a colleague at your former firm, Tillinghast and Licht. At that point the deposition was shut down on the basis of 30(d)3, Ru1e 30(d)3 of Rules of Civil Procedure because it was really going far beyond what is normal, and it’s our fear that the overreaching will occur and will be repeated in the depositions of Ms. Conley, Mr. Dana, Ms. Southgate, or anybody else who is deposed. This case is very narrowing, limited to Ms. Harris claim for indemnification, and to allow her to have a who1esale investigation of the City’, the functioning of the City, the functioning of the City Solicitor’s Office, the functioning of the Claims Committee beyond, I’m sorry, the functioning of the Licensing Board. That’s all far beyond the four corners of what she’s addressing in her complaint, which is whether she’s entitled to indemnification or not.
And so think, your Honor, you know there should be limitations placed on that, and Ms. Harris comments and her objection for our Motion For a Protective Order includes mentioning Mayor Elorza, that she wanted to ask about her removal as Chair of the licensing committee, and his interference with the Board of Licenses, but again, those are issues that are well-beyond the scope of any decision relating to her right to indemnification.
Similarly, she mentions, in relation to Mr. Dana, that she wanted to talk to him about prosecuting show cause cases in front of the Board of Licenses in a perfunctory manner. Again, what the City Solicitor’s Office decides to do in relation to the Board of Licensing matters, whether it be for strategic or other reasons way beyond what we’re dealing with here, and until I, Ms. Harris, to expand the course of this litigation to encompass an investigation of the city as a whole, and certainly the Board of License is just not appropriate. And as such, we’re seeking limitations on what the witness can be asked, so they’re not subject to harassing or burdensome questions about their ethical, the past, their past, their interactions with the Board of Ethics, their interaction with colleagues in the past, their interactions with other law firms and other lawyers, because none of those things directly relates to what’s at issue in this case.
THE COURT: Are you seeking to continue Mr. Zurier’s deposition?
MS. HARRIS: I am, your Honor. May I answer that? Yes. May I answer that?
THE COURT: Actually, no.
MS. HARRIS: I’m sorry?
THE COURT: Actually, no. Because I’m not going to rule on Mr. Zurier today. I want briefs, the issue of whether or not it has legislative immunity.
MS. HARRIS: I’m sorry. Say that again?
THE COURT: Whether or not he has legislative immunity. I know in the General Assembly, I’m not talking about the issue about the ethics. I’m talking about whether or not the legislative immunity of what he does as a councilman, because I think that’s the only thing that’s relevant here. It isn’t what he does as a private citizen. It’s what he does as a councilman is subject, whether he can be questioned on it, whether he has some kind of immunity, and I don’t know the answer to it. I know much more so with members of the General Assembly, so therefore, let’s do that. But I do believe, Ms. Harris, this is simple, it may not have a simple answer, but it’s a simple question: Were you entitled to be indemnified or not? That’s what you’re asking. And you filed a claim against the City for, I think it was 17 or $18,000, and I asked, and the City conceded that you had filed a claim appropriately with the Claims Committee, and that’s what we’re here on. So therefore, I said you can go amend your complaint.
MS. HARRIS: I did.
THE COURT: And you did. And I think you amended it a second time; right?
MS. HARRIS: I did.
THE COURT: Okay. So you’re seeking to recover the cost you incurred to defend yourself on items that you believe the city should have defended you in. I think that’s the area where you have to inquire. Now, that does give you some leeway but you don’t get into, you can’t get into someone’s entire life and career.
MS. HARRIS: Can I answer this specific point, because they’re extremely important. The first one is, why did I ask Mr. Zurier back, his ethic situation and whether he’s the subject of an ethics complaint? The reason is that when I was subject to an ethics complaint, I was told by Mr. Dana that I had to use him as my counsel. Now, for all sorts of reasons why I couldn’t do it, but when Mr. Zurier was asked, the subject of an ethics complaint, I wanted to know what he did. Now, he consulted with other people. He didn’t run right to the city solicitor. That is relevant. As far as Mr. Petrarca, I think that’s — Mr. Zurier said, he never read my complaint when it came to the Claims Committee. He never knew, he was the former chairman. He knew absolutely nothing. He knew nothing about Mr. Petrarca or what had happened, so that is relevant. As far as the —
THE COURT: The reason I’m asking, and that’s why I’m not, I think in another moment I’d listen to all of this, but the reason I ask you to brief the issues are — or the issue which I am raising is because paying one claim is a legislative act, that doesn’t mean if they fail to approve it that you don’t have relief or not, because the statute says you do, but they could, I believe and I could be wrong, that they can deny your claim because they didn’t like the glasses that you’re wearing. They don’t like the color of your dress or they don’t like your first or last name. I don’t believe — it’s a legislative act, and they don’t have to justify their decision.
Now, having said that, if there is, if he is allowed to be deposed, there’s the issue of the claims process, and I believe if he is allowed to depose, and I’m not sure whether he is or not, but if he is allowed to be deposed then the claims process, I think, is fair game, okay. It is just this claim, and I don’t mean that we have to go get every claim that’s ever been filed, but I’m having trouble understanding. It doesn’t matter what he chose to do in ethics.
MS. HARRIS: Well, it goes to the issue of since —
THE COURT: Have Mr. Dana say who– who at the City Solicitor’s Office, and the City Solicitor recognizes he’s only been there a year and a couple of months, but he has access to the records. Who have they indemnified in the past? When have they — there’s all kinds of questions you can ask to get what you’re getting at. Well, I understand that you think it was outrageous, and may be it was. I’m not — it’s not my job to comment on that, that it was outrageous what occurred at the licensing bureau. I don’t know why that’s before me.
MS. HARRIS: Well, I’m not interested in what happened in the license board. I’m interested in the motives that they started by not giving me my $18,000, but I just want to say one other thing because this is not–
THE COURT: Well, okay.
MS. HARRIS: When Mr. Carley conducted the deposition, and I’m not interested in whether we depose Mr. Zurier or not. I’m happy to write a brief. That’s not a problem. But he did a number of things that I want to make sure doesn’t happen again. The first one is he kept quoting a case named Ondis vs. Pion, and he basically misquoted the whole thing. He basically said that case has to do with a doctor, who is a treating doctor. Somebody who was injured. And the other side tried to turn him into a damage witness on the stand, and the Court said you can’t do that. He’s the treating doctor. He’s not the damage expert. And it was absolutely clear. I asked questions that to Mr. Zurier, which clearly we’re not doing that.
I wasn’t trying to make him my expert. Every time I asked him a question, a fact question, which would — was relevant to a specific fact in this case, Mr. Carley said, directed him not to answer and said I was turning him into an expert witness, so that’s the first thing. I was not doing that. The second thing is that he would interrupt after there was a question on the table, before there was an answer, and he would instruct by his objection, speaking objection, as to what Mr. Zurier would say, and I don’t want him to do that again. And then third, he would claim things that were privileged, which were not even privileged. They had nothing to do with privilege.
THE COURT: So let me — are you finished?
MS. HARRIS: I’m done.
THE COURT: So let me respond.
MS. HARRIS: Okay.
THE COURT: First of all, you don’t decide what’s privileged, nor does he. He gets to assert privilege, and that’s a basis for not answering a question. In fact, other than the two basis to instruct someone not to answer a question, one is privileged. And the other is if there is a harassment that goes beyond the bounds of appropriateness, and there’s a very interesting — I can’t remember the name of it, you probably can.
MR. CULLEN: Kelvey v. Kelvey, your Honor.
THE COURT: It’s the one, the Supreme Court came down and–
MR. CULLEN: You’re thinking of which was more recent?
THE COURT: There’s one that came down last year.
MR. CULLEN: Plante.
THE COURT: I think it’s Plante. So I urge you to read that.
MS. HARRIS: I’m happy to read it.
THE COURT: So those are basically two bases. However, on every other thing, if he fails to object to a question and he’s filing his objection, I’m talking to speaking objections, but if he fails to object and cites the reason. So if every question it — because of this case you cited, he has to say that in every answer. You may not like it, and you may find it annoying but he can object, give his grounds. I will instruct Mr. Carley that his objections are to be limited to the grounds for his objection, if he feels he wants to, because he has to preserve that for the record, but different from here, Ms. Harris, if the witness testifies here, I just put them on the witness stand. That’s all. The witness stands right up here.
MS. HARRIS: Okay.
THE COURT: So I just say if the witness was there and Mr. Carley objected, I rule on the objection. That doesn’t happen in deposition, a person has to give an answer but if the objection is preserved, and failure to object, if the deposition became relevant in the ultimate trial, there would be — he would waive his right to object, so that’s it, but please, instruct him not to give speaking objections, so that — if that’s what he did. I’m not saying he did that, but if he was, you cannot coach a witness by objecting. I know many a lawyer tries, and I might confess I probably tried that myself when I was trying a case, but that is inappropriate, but he can object all he wants and give the legal grounds for the objection. Okay. So does that answer a couple of your —
MS. HARRIS: Yes, yes —
MR. CULLEN: Your Honor —
MS. HARRIS: You just asked me a question, he interrupted.
MR. CULLEN: I apologize.
THE COURT: Did I cover all three?
MS. HARRIS: Yes, you did. My question is so, just so I understand, the only thing that you’re forbidding or saying it cannot go forward at this time is the Mayor’s deposition?
THE COURT: The mayor and Sam Zurier.
MS. HARRIS: And as far as Zurier, you want to say a brief on the issues you’ve outlined. I understand those.
THE COURT: But I do believe and I am not, I guess I’m going to have make an offer on the record that you can — it may make some sense. And unless both sides agree this is what happens, but I will allow my jury room to be used, just not in the next two weeks. The next two weeks, everything that I have mentioned a few minutes ago about being taken out of the office and were put in the jury room while we paint, and I’m not here the next two weeks so it can’t happen. But if both sides want to have I’m not going to sit in on the deposition, but if it gets to a point where either side thinks it’s out of hand, just don’t do it on a Wednesday because you’ll never get me. I can come in and resolve the dispute.
MS. HARRIS: I appreciate your offer and I don’t want that. I have a conference room and I will do the deposition in the same place.
THE COURT: But they have a right to — if they feel now it’s their risk–
MS. HARRIS: I understand.
THE COURT: I can award costs. If they think you’re going too far.
MS. HARRIS: I understand.
THE COURT: The deposition has to be on the issues that are necessary to establish your claim. I’m not — I can’t rule in advance on every question, but I think some of the things that you asked in this deposition frankly went way beyond.
MS. HARRIS: Well, if a deponent has a checkered past and they’re going to be a key witness at a trial, you’re telling me I can’t ask them about their past?
THE COURT: Yes, I am. I’m telling you you can ask them, first of all, we have a whole probably two or three weeks of evidence class which is dealt with what you can ask as to people’s characters and checkered past. In some cases you can and some cases you can’t.
MR. CULLEN: Just for the record, your Honor, I want to object to any suggestion that any of our witnesses have a checkered past. I’ll set that aside. I just wanted to put that–
THE COURT: Your objection is noted.
MS. HARRIS: And I must, you said you’re going to be gone for the next two weeks.
THE COURT: Yes.
MS. HARRIS: Is somebody taking your place or you’re not going to hear any motions? I guess what I’m saying is I have a motion, which I set forth for two weeks from now, two weeks from yesterday.
MS. HARRIS: Is somebody taking your place or you’re not going to hear any motions? I guess what I’m saying is I have a motion, which I set forth for two weeks from now, two weeks from yesterday.
MR. CULLEN: Actually, if I may, your Honor, that motion is set down for March 24, which is a Thursday.
MS. HARRIS: No, I amended it. That was the wrong–
THE COURT: I will not be here March 23rd.
MS. HARRIS: So my question is should I re notice it for another week?
THE COURT: My suggestion is yes, because you are not going to — you’re going to get someone who is not familiar, and who is also subbing on the motion calendar and has other responsibilities as well, and is going to say Judge Licht has heard this three or four times, continued.
MS. HARRIS: That’s fine.
THE COURT: So can we agree right now?
MR. CULLEN: That’s actually fine. I was going to suggest that.
THE COURT: You don’t have to do anything.
MS. HARRIS: I don’t have to do anything. That’s actually fine.
THE COURT: You’re going to have to e-mail whether you want, I’m assuming that you’re objecting to whatever motion it is?
MR. CULLEN: Absolutely. It’s a motion for sanctions. We are very much objecting to it.
THE COURT: Put it on for ready at 11:00.
MS. HARRIS: So you will chose a date?
THE COURT: No, it will be the 30th. The 30th.
THE CLERK: The 30th at 11:00.
THE COURT: And, actually, would you mind if it was the following week?
MS. HARRIS: No, no.
THE COURT: Put it on the following week because we are getting inundated with all these things when I come back.
THE CLERK: 4/6.
THE COURT: If you have papers, which I’m sure you filed, can you in the course of the next two weeks, get hard copies to Mr. Rampone.
MS. HARRIS: Sure.
THE COURT: So that way I can read them.
MS. HARRIS: Sure.
MR. CULLEN: Your Honor, one–
THE COURT: Just put that on for 11 because it’s not going to be resolved.
MR. CULLEN: One minor matter, in relation to the briefing of the deposition of Mr. Zurier, under the legislative immunity portion, there was a significant amount of testimony at the deposition of Mr. Zurier relating to the process for the Claims Committee, so I’d like an opportunity to just to brief whether the deposition needs to continue as to that issue, because I feel that has been covered ad nauseam.
THE COURT: I’m not even sure, I’m not sure he was allowed to be deposed — because you didn’t raise this issue. I’m raising this issue sua sponte, which I have a right to do, provided that I give both sides notice, an opportunity to be heard. If I just raise this issue and decide it, I’ll be found to be in error, because I didn’t give each side — no matter which way I decide.
MS. HARRIS: Now, can I just ask when is the brief due on Mr. Zurier?
THE COURT: When were you — when do you both feel you — I mean most appropriately, the City should probably —
MR. CULLEN: We can get it done in a week or week and a half, your Honor. I don’t see it taking longer than that. I don’t even think it would take that long.
THE COURT: So why don’t you get it in by a week from, I’m sorry, can you get it in next Friday, not tomorrow, the 18th?
MR. CULLEN: The 18th, yup.
THE COURT: You know what, we’re going to give it to the following Monday, the 21st.
MR. CULLEN: Okay. That’s fine, your Honor.
THE COURT: And then you get to, you can have until — cause I said this was going to be on the 7th.
THE CLERK: The 6th.
THE COURT: If you can get it to me by the 30th.
MS. HARRIS: By the 30th, that’s fine.
MR. CULLEN: That’s fine.
THE COURT: I’ll let you go first so you can–
MS. HARRIS: Absolutely, fine.
THE COURT: Is there anything else we need to do?
MR. CULLEN: I don’t believe so, your Honor, I think we’ve covered everything. There was — nope, we covered everything. I apologize. I just didn’t take it off.
THE COURT: And again, I would suggest I’m going to require that if you’re not going to take me up on my offer, which believe me I’m not, it’s your decision. But you probably, in case they feel– which they have a right to go to a judge. It probably makes more sense to come to me. And therefore, these two depositions have to be in the next two weeks.
MS. HARRIS: Well, there’s one on Monday.
THE COURT: I was really thinking more Mr. Dana.
MS. HARRIS: Well, okay. Why don’t we do this. I think Mr. Zurier was the most contentious, and I don’t think the other people will be of similar nature. I also think that Mr. Elorza and Mr. Dana are not until the end of April or May.
THE COURT: Well, I don’t say Elorza.
MS. HARRIS: Well, if they are.
THE COURT: I’m going to have to see the transcript of Dana and Conley before I even consider Elorza.
MS. HARRIS: Okay. Okay.
THE COURT: It’s not just them.
MS. HARRIS: Well, Conley believe, in three weeks.
THE COURT. Okay. So I’m around.
MR CULLEN: Your Honor, by our preference, if your Honor is making an offer of availability, that you will be available for telephone calls, that we continue Ms. Southgate’s deposition a couple of weeks to allow that to happen. If its not — we’re not asking to take it in the jury room, but certainly if it’s anything like Mr. Zurier’s deposition, you know, we prefer–
THE COURT: Why don’t we do this, it’s scheduled. This is not — whose —
MS. HARRIS: It’s Ms. Southgate’s deposition. Its been scheduled. The stenographer is hired. I changed the deposition.
THE COURT: See what it is, and if you don’t have to, I didn’t say I was going to be available for phone calls. I said you can try and find me.
MR. CULLEN: I’m sorry, I misunderstood.
THE COURT: You can always call and see if you can find me. I was just saying a likelihood of finding me is a lot better if you’re next door, because the sheriff, there’s somebody if I’m on the phone, if I can answer it, I’ll answer it.
MR. CULLEN: I understand.
THS COURT: So, no, I’m not going to continue. Let it go forward, and you know how to protect your witness, and do what you have to do. I’m just saying if for some reason it were to be interrupted, you probably at that point would want to wait and bring it to me. I would love it if someone else had this case. I have it. While I don’t have it, because it’s an assignment I nave it. I’m familiar with it. It makes more sense.
MR. CULLEN: Thank you, your Honor, and I apologize Ms. Shelton wasn’t here. She’s much more pleasant than I am.
MS. HARRIS: Thank you.
MR. CULLEN: Thank you. And I’ll prepare the order, your Honor, and I’ll share them with Ms. Harris.
MS. HARRIS: Wait, wait, wait. Last time the attorney for the city prepared an order, it was essentially not correct. It was an order to amend the complaint and he had an order about adding parties.
THE COURT: So here’s what the rule is.
MS. HARRIS: What’s the rule?
THE COURT: The rule is actually either side can, either side can present an order.
MS. HARRIS: Okay.
THE COURT: And then the Court decides.
MS. HARRIS: Okay. Great.
THE COURT: Wait, that’s the rule. The practice is that the moving party, which I think in this case is the City.
MR. CULLEN: Yes.
THE COURT: The moving party drafts the order to which you can object and you can also provide subsequent, I would ask and I know this is contentious, I would ask the two of you, try and reach an agreement, so I don’t have to decide everything in this case.
MS. HARRIS: So you’re saying he can draft the order and I can object.
THE COURT: It cannot be entered for four days.
MR. CULLEN: Your Honor, I’ll share it with Ms. Harris and we will have an agreement before I write the order.
THE COURT: So you — just so you understand what he just said, he’s going to draft the order, send it to you, not send it to the Court. You can communicate your objection or your edits, and if you agree, fine. If you don’t agree, then after going back and forth a little bit, then you’ll come to me and I’ll decide what the order says.
MS. HARRIS: Okay. That’s fine.
MR. CULLEN: Thank you, your Honor.
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