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Mirlis v. Greer

United States District Court, D. Connecticut

April 17, 2017

ELIYAHU MIRLIS, Plaintiff,
v.
RABBI DANIEL GREER, and YESHIVA OF NEW HAVEN, INC., Defendants.

          RULING ON DEFENDANTS' MOTION TO COMPEL

          Donna F. Martinez United States Magistrate Judge.

         Pending before the court is the defendants' motion to compel nonparty Aviad Hack to answer certain questions asked at his deposition. (Doc. #29.)

         I. Procedural Background

         The plaintiff, Eliyahu Mirlis, brought this diversity action against defendants Yeshiva of New Haven, Inc., an orthodox Jewish school, and Rabbi Greer, the school's principal. The plaintiff alleges that defendant Greer sexually molested him from 2002 to 2005 when the plaintiff was a student at the school. (Doc. #117, Am. Compl. ¶12.)

         During the course of discovery, the plaintiff noticed the deposition of nonparty Aviad Hack ("Hack"). The deposition began on July 25, 2016.[1] Counsel for the deponent objected to some questions posed by defense counsel. The lawyers could not resolve their differences, and thereafter contacted Judge Shea, who referred the dispute to me. (Doc. #21.) I held a conference call with counsel and advised them to make a clear and precise record at the deposition so as to permit meaningful judicial evaluation. I repeated on the docket that any motion to compel regarding the deposition must specify "with particularity each question at issue." (Doc. #25.) The defendants subsequently filed the instant motion.[2] (Doc. ##29, 33.)[3]

         II. Discussion

         The defendants' motion to compel concerns the deponent Hack's conversations with two other nonparties - Yaakov Hatanian and Rabbi Hillel David.[4]

         A. Hack's conversation with Yaakov Hatanian

         The deponent Hack attended the defendant Yeshiva of New Haven and later worked for Greer at the school. Hack testified that from 1991 or 1992, when he was a student, until 2004, he was involved in a sexual relationship with defendant Greer. (Hack Dep. 7/25/16 at 22 - 25.) Hack further testified that (1) he was aware that Greer was sexually molesting the plaintiff and (2) Greer made admissions to him about Greer's involvement with the plaintiff. (Hack Dep. 7/25/16 at 39, 42-44.)

         Defense counsel asked Hack questions about another former student named Yaakov Hatanian ("Hatanian"). Hack testified that the last time he spoke to Hatanian was December 17, 2015.[5] The following colloquy ensued:

Defense counsel: What was that conversation about?
. . . .
Hack's counsel: You don't have to answer the question if you don't want to. I don't think it's relevant or calculated to lead to admissible evidence. . . .

(Tr. 7/25/16 at 95.)

         The defendants move to compel Hack to answer the question.[6]Hack's counsel objects on the grounds that the subject matter of the conversation is not relevant.

         B. Legal Standard

         "It is improper to instruct a witness not to answer a question on the basis of relevancy." 7 James Wm. Moore et al., Moore's Federal Practice ¶30-88 (3d ed. 2016). "[I]f there is an objection to the question on such grounds, the court reporter should note the objection but the examination should proceed." Baines v. City of N.Y., No. 10CV9545, 2016 WL 3042787, at *3 (S.D.N.Y. May 27, 2016). Pursuant to Fed.R.Civ.P. 30(c)(2)[7], "[a] deponent may only refuse to testify under three circumstances: to preserve a privilege; to enforce a Court ordered limitation; or to present a motion under Rule 30(d)(3)." Kelley v. City of Hamden, No. 3:15CV00977(AWT)(SALM), 2016 WL 5348568, at *2 (D. Conn. Sept. 23, 2016).

         None of these three circumstances existed here. The deponent did not assert a privilege; the court had not ordered a limitation regarding testimony pursuant to Rule 26(c); the ...


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