Preview
FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018
STATE OF NEW YORK
SUPREME COURT :COUNTY OF ERIE
TIMOTHY WOJDAN,
Plaintiff,
v.
Index No.: 808140/2015
ERIE COUNTY MEDICAL CENTER CORPORATION,
WILLIAM DICE, M.D.,
ANDREW J. ECKERT, M.D.,
TATIANA V. BOYKO, M.D. and
CHARLES WILES, M.D.
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF TIMOTHY
WOJDAN'S MOTION FOR A PROTECTIVE ORDER
By: Steven M. Cohen, Esq.
Rebecca Cronauer, Esq.
HOGANWILLIG, PLLC
Attorneys for Defendant
2410 North Forest Road, Suite 301
Amherst, New York 14068
(716) 636-7600
scohen@hoganwillig.com
1
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600~ Toll
Free: 800.636.5255
~ Fax:716.636.7606~ www.hoganwillig.corn
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PRELIMINARY STATEMENT
This Memorandum of Law is submitted on behalf of Plaintiff in support of his Motion for
a protective order of this Court further examination before trial of McMindes-
precluding Shelley
Wojdan or, in the alternative, restricting the scope of any further examination of Shelley
McMindes-Wojdan, and for such other and further relief to Plaintiff as this Court deems just and
proper.
STATEMENT OF FACTS
The relevant facts have been set forth in the accompanying Attorney Affirmation of
Steven M. Cohen, Esq. and, in the interest of judicial economy, are incorporated by reference as
if they had been fully set forth herein.
STANDARD OF REVIEW
Pursuant to CPLR § 3101 (a), full disclosure of all evidence material and necessary in
the prosecution or defense of an action is required, regardless of which party bears the burden of
proof. The Court of Appeals has found that the statutory language of CPLR §3101 is to be
interpreted liberally to require disclosure, upon request, of any facts bearing on a controversy
which will assist preparation for trial by sharpening the issues and reducing delay. Allen v.
Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406-407, 235 N.E.2d 430, 432, 288 N.Y.S.2d
449, 452-453 (1968); see also Scalone v. Phelps Memorial Hosp. Center, 184 A.D.2d 65, 68,
(2"d
591 N.Y.S.2d 419, 421 Dept. 1992). Although the discovery provisions of CPLR §
3101(a) are to be liberally construed and the trial court possesses wide discretion in deciding
whether the information sought is material and necessary, those demands which are unduly
burdensome or lack specificity or seek privileged matter or seek irrelevant information or
are otherwise improper must be denied. Cynthia B. v. New Rochelle Hospital Medical Center,
2
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600~ Toll
Free: 800.636.5255
~ Fax:716.636.7606~ www.hoganwillig.corn
2 of 8
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018
60 N.Y.2d 458 N.E.2d 470 N.Y.S.2d 127 Allen v. Crowell-
452, 461, 363, 368, 122, (1983);
Collier Publishing Co., supra at 406-407, 235 N.E.2d 430, 432, 288 N.Y.S.2d 449, 452-453 ; see
(3rd
also Capoccia v. Spiro, 88 A.D.2d 1100, 1101, 453 N.Y.S.2d 70, 72 (3 Dept. 1982) (Holding
that carte blanche demands are not to be honored, and those demands which are unduly
burdensome or lack specificity or seek privileged matter or seek irrelevant information or are
otherwise improper must be denied).
Under CPLR § 3103(a), the court may at any time on its own initiative, or on motion of
any party or witness, make a protective order denying, limiting, conditioning or regulating the
use of any disclosure device. In re U. S. Pioneer Electronics Corp., 47 N.Y.2d 914, 916, 393
N.E.2d
J 1~~ ~~%0 478, ~I P ) 419
~I \/ ) 479,~8 4 N.Y.S.2d
J 1~X ~Lg~~%0 484,
~\/ ~\/ ht' (1979).
~) 485 g 8 4 ( 4 J ~ The
4 44'Wregulation
4 'W/%OAF% 8 the
%/44of
%F %EX%LFV %ggw of
scope 8 disclosure
%g %044K %%E
'V4%/LP is
V ALPleft V
4'W4
to the sound discretion of the trial court. Scalone, supra at 68, 591 N.Y.S.2d 419, 421, 1992
N.Y. App. Div. LEXIS 13639, *1. Such order shall be designed to prevent unreasonable
annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the
courts. Gabriel v. Johnston's L.P. Gas 98 A.D.3d 947 N.Y.S.2d 721-
Serv., Inc.,
,Inc., 168, 175, 716,
(4th
722 (4 Dept. 2012).
ARGUMENT
ANY FURTHER EXAMINATION OF THE NONPARTY
WITNESS SHELLEY MCMINDES-WOJDAN SHOULD BE
PRECLUDED AS IT IS UNDULY BURDENSOME AND
NOT RELEVANT OR NECESSARY TO DEFENSE
COUNSEL.
Provisions of the CPLR allow a party to an action to obtain discovery from a nonparty.
Matter of Kapon v. Koch, 23 N.Y.3d 32, 34, 11 N.E.3d 709, 711, 988 N.Y.S.2d 559, 561 (2014).
CPLR § 3101(a)(4) requires full disclosure of all material and necessary information in the
3
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600(~ Toll 800.636.5255
Free: $00.6368255(~ Fax:
716.636.7606 www.hoganwillig.corn
(~ vnrw.hoganwillig.corn
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prosecution or defense of an action, and further indicates that such disclosure can be compelled
by nonparties where certain disclosure requirements are met.
Pursuant to CPLR § 3101(a)(4), party seeking disclosure from a nonparty witness is
required to request said disclosure with notice indicating the circumstances or reasons such
disclosure is sought or required. See Matter of Kapon, supra at 34, 11 N.E.3d 709, 711, 988
N.Y.S.2d 559, 561; see also Velez v. Hunts Point Multi-Serv. -Ctr
Ctr.,,.Inc
Inc.,.,29
29 A.D.3d 104, 105, 811
(1st
N.Y.S.2d 5, 6 Dept. 2006). New York Courts specifically distinguish a party from a
nonparty for disclosure purposes, and where a party is seeking disclosure from a nonparty, more
stringent requirements are imposed on the party seeking disclosure. See Matter of Kapon, supra
at 34, 11 N.E.3d 709, 711, 988 N.Y.S.2d 559, 561. Where a deposition of a nonparty is sought,
the nonparty must be served with a subpoena issued pursuant to CPLR § 3106(b). Id. Where a
nonparty is compelled to produce books, materials or other documentation in conjunction with
her deposition, a notice or subpoena is to be served upon the nonparty witness, and the party
serving the subpoena is under an obligation to describe the items sought and be certain to make
the subpoena unambiguous. Id.
Even where a party seeking disclosure has complied with the notice and subpoena
requirements set forth by the CPLR, the party does not necessarily have an unfettered right to
disclosure. On the contrary, the Court of Appeals has expressly found that the material and
necessary standard applicable under §3103 is likewise applicable to determine whether the
requested disclosure is required from a nonparty. Matter of Kapon, supra, at 34, 11 N.E.3d 709,
711, 988 N.Y.S.2d 559, 561.
The Fourth Appellate Department has found that where a party seeks disclosure which
would impose an undue hardship upon a nonparty, a trial court in its discretion may issue a
4
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600~ Toll
Free: 800.636.5255
~ Fax:716.636.7606~ www.hoganwillig.corn
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protective order against further disclosure. Gabriel, supra at 176, 947 N.Y.S.2d 716, 722.
Furthermore, New York Courts have routinely denied further disclosure where the discovery
sought was neither relevant to the litigation... nor useful in sharpening the issues or reducing
delay". Columbia Gas of New York, Inc. v. New York State Electric & Gas Corp., ,3535 A.D.2d
(3"I
620, 621, 312 N.Y.S.2d 615, 616 Dept 1970) citing Allen v. Crowell-Collier Pub. Co., 21 N
Y 2d 403 (1968).
At the outset, it is worth emphasizing that Defense counsel has failed to make any
attempt to comply with the notice requirements related to subpoenaing testimony and
documentation or other materials from a nonparty witness. In fact, the testimony of Mrs.
McMindes-Wojdan was only orally requested during the examination of the plaintiff. Plaintiff's
counsel indicated that Mrs. McMindes-Wojdan would appear for testimony upon written request,
however none was ever produced. Additionally, Defense counsel never produced a subpoena in
compliance with CPLR § 3111, requesting various documents and materials from Mrs.
McMindes-Wojdan. As a result, Defense counsel has failed to meet the procedural requirements
to entitle them to any discovery or disclosure from a nonparty witness.
Furthermore, it is clear that there is no need for additional deposition testimony from
Shelley McMindes-Wojdan. As emphasized in the Attorney Affirmation in support of Plaintiff's
motion for a protective order, Ms. McMindes-Wojdan has already submitted to deposition
testimony on four separate occasions, which produced a transcript totaling more than 600 pages.
During her testimony, Mrs. McMindes-Wojdan answered the questions in a thorough and
exhaustive manner.
counsels'
Despite Plaintiff's and Mrs. Mindes-Wojdan's cooperation with Defense
deposition and discovery requests, Defense counsel has unnecessarily prolonged the deposition
5
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600~ Toll
Free: 800.636.5255
~ Fax:716.636.7606~ www.hoganwillig.corn
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of Mrs. McMindes-Wojdan by appearing for the deposition unprepared and by asking irrelevant
and patently privileged questions. Defense counsel's lack of preparedness is thoroughly
illustrated in the September 28, 2017 transcript where Defense counsel failed to bring exhibits
necessary for a line of questioning (See Exhibit F at pp. 447-449), repeatedly asked the witness
the location of specific entries in a voluminous exhibit (Id. at pp. 439-440), and failed to bring
the technology necessary to play the audio recordings upon which Defense counsel planned to
ask questions (Id. at pp. 425-427). Most egregiously, defense counsel insisted on playing entire
audio recordings, large portions of which were irrelevant, rather than having specific relevant
portions marked in advance of this deposition. Id. at pp. 479-80.
As of the fourth deposition of Mrs. Mindes-Wojdan, Plaintiff's counsel indicated that the
deposition would have a hard stop at 4:15 p.m. Id. at pp. 458, 460. Plaintiff's counsel made clear
that although the witness had been produced as a courtesy, given the extensive delays and
unnecessary lines of questioning, any further testimony sought from Mrs. Mindes-Wojdan would
likely be objected to by plaintiff's counsel. Id. at pp. 457-58. Nonetheless, Defense counsel
continued with their inefficient and irrelevant line of questioning for the duration of the day on
September 28, 2017 and the deposition was stopped at 4:15 p.m. Id. at pp. 457-61, 479-80, 528.
Defense counsel indicated on multiple occasions that she planned to preserve her right to
further testimony from Mrs. Mindes-Wojdan, evidencing a clear intention to continue to harass
and annoy the witness. Id. at pp. 457, 603. A review of the line of questioning on September 28,
2017 makes clear that there was no need for a full day of questioning, let alone multiple requests
to continue examination of the witness in the future. See id., generally.
Defense counsel has been given ample time to examine Mrs. Mindes-Wojdan. There is
no showing of a lack of cooperation in the examination by the witness, who in fact answered all
6
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600~ Toll
Free: 800.636.5255
~ Fax:716.636.7606~ www.hoganwillig.corn
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non-privileged questions posed to the extent of her knowledge and recollection. Any failure to
counsels'
obtain information sought at this point is solely attributable to Defense lack of
preparation and failure to review produced materials in advance of the deposition of the witness.
Further deposition testimony would subject Mrs. Mindes-Wojdan to discomfort, harassment and
annoyance. Additionally, Plaintiff's counsel has spent in excess of 24 hours defending these
depositions. It is Plaintiff's position that Defense counsel should be precluded from further
examination of Mrs. Mindes-Wojdan because the examinations have become harassing,
financially burdensome, and Defense counsel cannot show that further questioning would be
relevant to the litigation or useful in sharpening the issues or reducing delay. See Columbia Gas
of New York, Inc. v. New.York
York State Electric & Gas Corp., 35 A.D.2d 620, 621, 312 N.Y.S.2d
(3"1
615, 616 Dept 1970) citing Allen v. Crowell-Collier Pub. Co., 21 N Y 2d 403 (1968).
The Nassau County Supreme Court Case of Greco v Capobianco is instructive on the
instant set of facts. The Court in Greco denied a motion to compel deposition testimony from a
nonparty witness where the need for testimony was not established and testimony sought was
considered to be duplicative. Greco v Capobianco, 2009 N.Y. Misc. LEXIS 4856, 4-5, 2009 NY
Slip Op 30949(U), 3-5 (Nassau County Supreme Court, April 20, 2009). As in Greco, there is
no further need for deposition testimony of Mrs. Mindes-Wojdan, and any further testimony
would be either duplicative or irrelevant. As a result, pursuant to CPLR§ 3103, the Plaintiff's
motion for a protective order should be granted precluding any further examination before trial
of Mrs. Mindes-Wojdan.
7
HoGANWILLIG
Attorneys at Law
2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600~ Toll
Free: 800.636.5255
~ Fax:716.636.7606~ www.hoganwillig.corn
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CONCLUSION
Based on the foregoing, Plaintiff respectfully requests that the Court issue an Order
granting Plaintiff's Motion for a protective order or, in the alternative, limiting the scope of any
and all further examination before trial of Shelley McMindes-Wojdan, and granting such other
and further relief to Plaintiff as this Court deems just and proper.
DATED: February 1, 2018
Amherst, New York
liteven M. Cohen, Esq.
HoganWillig, PLLC
Attorneys for Plaintly
2410 North Forest Road, Suite 301
Amherst, New York 14068
(716) 636-7600
scohen@hoganwillig.com .com
TO: Florina Altshiler, Esq.
Russo & Toner, LLP
Attorneys for Defendant Charles Wiles, M D.
12 Fountain Plaza
Buffalo, New York 14202
(716) 800-6389
John P. Danieu, Esq.
Roach, Brown, McCarthy & Gruber, P.C.
Attorneys for Defendants Erie County Medical Center
Corporation, Andrew J. Eckert, M D., and
Tatiana V. Boyko, M D.
1920 Liberty Building
424 Main Street
Buffalo, New York 14202
(716) 852-0400
Colleen K. Mattrey, Esq.
Smith, Sovik, Kendrick & Sugnet, P.C.
Attorneys for Defendant William Dice, M D.
500 Rand Building
14 Lafayette Square
Buffalo, New York 14203
(800) 675-0011
8
HOGANW IL L IG
Attorneys at Law
2410 NORTH liOREST ROAD | SU1TE 301 | AMHERST, NEW YORK 14068
Phone: 716.636.7600( Toll
Frcc:800.636.5255) Fax: 716.636.7606
( www.hoganwillig.corn
8 of 8
Preview
FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 STATE OF NEW YORK SUPREME COURT :COUNTY OF ERIE TIMOTHY WOJDAN, Plaintiff, v. Index No.: 808140/2015 ERIE COUNTY MEDICAL CENTER CORPORATION, WILLIAM DICE, M.D., ANDREW J. ECKERT, M.D., TATIANA V. BOYKO, M.D. and CHARLES WILES, M.D. Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF TIMOTHY WOJDAN'S MOTION FOR A PROTECTIVE ORDER By: Steven M. Cohen, Esq. Rebecca Cronauer, Esq. HOGANWILLIG, PLLC Attorneys for Defendant 2410 North Forest Road, Suite 301 Amherst, New York 14068 (716) 636-7600 scohen@hoganwillig.com 1 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600~ Toll Free: 800.636.5255 ~ Fax:716.636.7606~ www.hoganwillig.corn 1 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 PRELIMINARY STATEMENT This Memorandum of Law is submitted on behalf of Plaintiff in support of his Motion for a protective order of this Court further examination before trial of McMindes- precluding Shelley Wojdan or, in the alternative, restricting the scope of any further examination of Shelley McMindes-Wojdan, and for such other and further relief to Plaintiff as this Court deems just and proper. STATEMENT OF FACTS The relevant facts have been set forth in the accompanying Attorney Affirmation of Steven M. Cohen, Esq. and, in the interest of judicial economy, are incorporated by reference as if they had been fully set forth herein. STANDARD OF REVIEW Pursuant to CPLR § 3101 (a), full disclosure of all evidence material and necessary in the prosecution or defense of an action is required, regardless of which party bears the burden of proof. The Court of Appeals has found that the statutory language of CPLR §3101 is to be interpreted liberally to require disclosure, upon request, of any facts bearing on a controversy which will assist preparation for trial by sharpening the issues and reducing delay. Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406-407, 235 N.E.2d 430, 432, 288 N.Y.S.2d 449, 452-453 (1968); see also Scalone v. Phelps Memorial Hosp. Center, 184 A.D.2d 65, 68, (2"d 591 N.Y.S.2d 419, 421 Dept. 1992). Although the discovery provisions of CPLR § 3101(a) are to be liberally construed and the trial court possesses wide discretion in deciding whether the information sought is material and necessary, those demands which are unduly burdensome or lack specificity or seek privileged matter or seek irrelevant information or are otherwise improper must be denied. Cynthia B. v. New Rochelle Hospital Medical Center, 2 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600~ Toll Free: 800.636.5255 ~ Fax:716.636.7606~ www.hoganwillig.corn 2 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 60 N.Y.2d 458 N.E.2d 470 N.Y.S.2d 127 Allen v. Crowell- 452, 461, 363, 368, 122, (1983); Collier Publishing Co., supra at 406-407, 235 N.E.2d 430, 432, 288 N.Y.S.2d 449, 452-453 ; see (3rd also Capoccia v. Spiro, 88 A.D.2d 1100, 1101, 453 N.Y.S.2d 70, 72 (3 Dept. 1982) (Holding that carte blanche demands are not to be honored, and those demands which are unduly burdensome or lack specificity or seek privileged matter or seek irrelevant information or are otherwise improper must be denied). Under CPLR § 3103(a), the court may at any time on its own initiative, or on motion of any party or witness, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. In re U. S. Pioneer Electronics Corp., 47 N.Y.2d 914, 916, 393 N.E.2d J 1~~ ~~%0 478, ~I P ) 419 ~I \/ ) 479,~8 4 N.Y.S.2d J 1~X ~Lg~~%0 484, ~\/ ~\/ ht' (1979). ~) 485 g 8 4 ( 4 J ~ The 4 44'Wregulation 4 'W/%OAF% 8 the %/44of %F %EX%LFV %ggw of scope 8 disclosure %g %044K %%E 'V4%/LP is V ALPleft V 4'W4 to the sound discretion of the trial court. Scalone, supra at 68, 591 N.Y.S.2d 419, 421, 1992 N.Y. App. Div. LEXIS 13639, *1. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts. Gabriel v. Johnston's L.P. Gas 98 A.D.3d 947 N.Y.S.2d 721- Serv., Inc., ,Inc., 168, 175, 716, (4th 722 (4 Dept. 2012). ARGUMENT ANY FURTHER EXAMINATION OF THE NONPARTY WITNESS SHELLEY MCMINDES-WOJDAN SHOULD BE PRECLUDED AS IT IS UNDULY BURDENSOME AND NOT RELEVANT OR NECESSARY TO DEFENSE COUNSEL. Provisions of the CPLR allow a party to an action to obtain discovery from a nonparty. Matter of Kapon v. Koch, 23 N.Y.3d 32, 34, 11 N.E.3d 709, 711, 988 N.Y.S.2d 559, 561 (2014). CPLR § 3101(a)(4) requires full disclosure of all material and necessary information in the 3 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600(~ Toll 800.636.5255 Free: $00.6368255(~ Fax: 716.636.7606 www.hoganwillig.corn (~ vnrw.hoganwillig.corn 3 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 prosecution or defense of an action, and further indicates that such disclosure can be compelled by nonparties where certain disclosure requirements are met. Pursuant to CPLR § 3101(a)(4), party seeking disclosure from a nonparty witness is required to request said disclosure with notice indicating the circumstances or reasons such disclosure is sought or required. See Matter of Kapon, supra at 34, 11 N.E.3d 709, 711, 988 N.Y.S.2d 559, 561; see also Velez v. Hunts Point Multi-Serv. -Ctr Ctr.,,.Inc Inc.,.,29 29 A.D.3d 104, 105, 811 (1st N.Y.S.2d 5, 6 Dept. 2006). New York Courts specifically distinguish a party from a nonparty for disclosure purposes, and where a party is seeking disclosure from a nonparty, more stringent requirements are imposed on the party seeking disclosure. See Matter of Kapon, supra at 34, 11 N.E.3d 709, 711, 988 N.Y.S.2d 559, 561. Where a deposition of a nonparty is sought, the nonparty must be served with a subpoena issued pursuant to CPLR § 3106(b). Id. Where a nonparty is compelled to produce books, materials or other documentation in conjunction with her deposition, a notice or subpoena is to be served upon the nonparty witness, and the party serving the subpoena is under an obligation to describe the items sought and be certain to make the subpoena unambiguous. Id. Even where a party seeking disclosure has complied with the notice and subpoena requirements set forth by the CPLR, the party does not necessarily have an unfettered right to disclosure. On the contrary, the Court of Appeals has expressly found that the material and necessary standard applicable under §3103 is likewise applicable to determine whether the requested disclosure is required from a nonparty. Matter of Kapon, supra, at 34, 11 N.E.3d 709, 711, 988 N.Y.S.2d 559, 561. The Fourth Appellate Department has found that where a party seeks disclosure which would impose an undue hardship upon a nonparty, a trial court in its discretion may issue a 4 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600~ Toll Free: 800.636.5255 ~ Fax:716.636.7606~ www.hoganwillig.corn 4 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 protective order against further disclosure. Gabriel, supra at 176, 947 N.Y.S.2d 716, 722. Furthermore, New York Courts have routinely denied further disclosure where the discovery sought was neither relevant to the litigation... nor useful in sharpening the issues or reducing delay". Columbia Gas of New York, Inc. v. New York State Electric & Gas Corp., ,3535 A.D.2d (3"I 620, 621, 312 N.Y.S.2d 615, 616 Dept 1970) citing Allen v. Crowell-Collier Pub. Co., 21 N Y 2d 403 (1968). At the outset, it is worth emphasizing that Defense counsel has failed to make any attempt to comply with the notice requirements related to subpoenaing testimony and documentation or other materials from a nonparty witness. In fact, the testimony of Mrs. McMindes-Wojdan was only orally requested during the examination of the plaintiff. Plaintiff's counsel indicated that Mrs. McMindes-Wojdan would appear for testimony upon written request, however none was ever produced. Additionally, Defense counsel never produced a subpoena in compliance with CPLR § 3111, requesting various documents and materials from Mrs. McMindes-Wojdan. As a result, Defense counsel has failed to meet the procedural requirements to entitle them to any discovery or disclosure from a nonparty witness. Furthermore, it is clear that there is no need for additional deposition testimony from Shelley McMindes-Wojdan. As emphasized in the Attorney Affirmation in support of Plaintiff's motion for a protective order, Ms. McMindes-Wojdan has already submitted to deposition testimony on four separate occasions, which produced a transcript totaling more than 600 pages. During her testimony, Mrs. McMindes-Wojdan answered the questions in a thorough and exhaustive manner. counsels' Despite Plaintiff's and Mrs. Mindes-Wojdan's cooperation with Defense deposition and discovery requests, Defense counsel has unnecessarily prolonged the deposition 5 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600~ Toll Free: 800.636.5255 ~ Fax:716.636.7606~ www.hoganwillig.corn 5 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 of Mrs. McMindes-Wojdan by appearing for the deposition unprepared and by asking irrelevant and patently privileged questions. Defense counsel's lack of preparedness is thoroughly illustrated in the September 28, 2017 transcript where Defense counsel failed to bring exhibits necessary for a line of questioning (See Exhibit F at pp. 447-449), repeatedly asked the witness the location of specific entries in a voluminous exhibit (Id. at pp. 439-440), and failed to bring the technology necessary to play the audio recordings upon which Defense counsel planned to ask questions (Id. at pp. 425-427). Most egregiously, defense counsel insisted on playing entire audio recordings, large portions of which were irrelevant, rather than having specific relevant portions marked in advance of this deposition. Id. at pp. 479-80. As of the fourth deposition of Mrs. Mindes-Wojdan, Plaintiff's counsel indicated that the deposition would have a hard stop at 4:15 p.m. Id. at pp. 458, 460. Plaintiff's counsel made clear that although the witness had been produced as a courtesy, given the extensive delays and unnecessary lines of questioning, any further testimony sought from Mrs. Mindes-Wojdan would likely be objected to by plaintiff's counsel. Id. at pp. 457-58. Nonetheless, Defense counsel continued with their inefficient and irrelevant line of questioning for the duration of the day on September 28, 2017 and the deposition was stopped at 4:15 p.m. Id. at pp. 457-61, 479-80, 528. Defense counsel indicated on multiple occasions that she planned to preserve her right to further testimony from Mrs. Mindes-Wojdan, evidencing a clear intention to continue to harass and annoy the witness. Id. at pp. 457, 603. A review of the line of questioning on September 28, 2017 makes clear that there was no need for a full day of questioning, let alone multiple requests to continue examination of the witness in the future. See id., generally. Defense counsel has been given ample time to examine Mrs. Mindes-Wojdan. There is no showing of a lack of cooperation in the examination by the witness, who in fact answered all 6 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600~ Toll Free: 800.636.5255 ~ Fax:716.636.7606~ www.hoganwillig.corn 6 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 non-privileged questions posed to the extent of her knowledge and recollection. Any failure to counsels' obtain information sought at this point is solely attributable to Defense lack of preparation and failure to review produced materials in advance of the deposition of the witness. Further deposition testimony would subject Mrs. Mindes-Wojdan to discomfort, harassment and annoyance. Additionally, Plaintiff's counsel has spent in excess of 24 hours defending these depositions. It is Plaintiff's position that Defense counsel should be precluded from further examination of Mrs. Mindes-Wojdan because the examinations have become harassing, financially burdensome, and Defense counsel cannot show that further questioning would be relevant to the litigation or useful in sharpening the issues or reducing delay. See Columbia Gas of New York, Inc. v. New.York York State Electric & Gas Corp., 35 A.D.2d 620, 621, 312 N.Y.S.2d (3"1 615, 616 Dept 1970) citing Allen v. Crowell-Collier Pub. Co., 21 N Y 2d 403 (1968). The Nassau County Supreme Court Case of Greco v Capobianco is instructive on the instant set of facts. The Court in Greco denied a motion to compel deposition testimony from a nonparty witness where the need for testimony was not established and testimony sought was considered to be duplicative. Greco v Capobianco, 2009 N.Y. Misc. LEXIS 4856, 4-5, 2009 NY Slip Op 30949(U), 3-5 (Nassau County Supreme Court, April 20, 2009). As in Greco, there is no further need for deposition testimony of Mrs. Mindes-Wojdan, and any further testimony would be either duplicative or irrelevant. As a result, pursuant to CPLR§ 3103, the Plaintiff's motion for a protective order should be granted precluding any further examination before trial of Mrs. Mindes-Wojdan. 7 HoGANWILLIG Attorneys at Law 2410 NORTH FOREST ROAD | SUITE301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600~ Toll Free: 800.636.5255 ~ Fax:716.636.7606~ www.hoganwillig.corn 7 of 8 FILED: ERIE COUNTY CLERK 02/02/2018 02:36 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 02/02/2018 CONCLUSION Based on the foregoing, Plaintiff respectfully requests that the Court issue an Order granting Plaintiff's Motion for a protective order or, in the alternative, limiting the scope of any and all further examination before trial of Shelley McMindes-Wojdan, and granting such other and further relief to Plaintiff as this Court deems just and proper. DATED: February 1, 2018 Amherst, New York liteven M. Cohen, Esq. HoganWillig, PLLC Attorneys for Plaintly 2410 North Forest Road, Suite 301 Amherst, New York 14068 (716) 636-7600 scohen@hoganwillig.com .com TO: Florina Altshiler, Esq. Russo & Toner, LLP Attorneys for Defendant Charles Wiles, M D. 12 Fountain Plaza Buffalo, New York 14202 (716) 800-6389 John P. Danieu, Esq. Roach, Brown, McCarthy & Gruber, P.C. Attorneys for Defendants Erie County Medical Center Corporation, Andrew J. Eckert, M D., and Tatiana V. Boyko, M D. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 (716) 852-0400 Colleen K. Mattrey, Esq. Smith, Sovik, Kendrick & Sugnet, P.C. Attorneys for Defendant William Dice, M D. 500 Rand Building 14 Lafayette Square Buffalo, New York 14203 (800) 675-0011 8 HOGANW IL L IG Attorneys at Law 2410 NORTH liOREST ROAD | SU1TE 301 | AMHERST, NEW YORK 14068 Phone: 716.636.7600( Toll Frcc:800.636.5255) Fax: 716.636.7606 ( www.hoganwillig.corn 8 of 8