UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------X JORDAN S., A Minor, by and through hi Parents and Next Frieds, Suzanne and Jeffrey S.,
Plaintiff, ORDER - against - CV 08-1446 (LDW) (AKT) HEWLETT WOODMERE UNION FREE SCHOOL DISTRICT,
Defendant. ----------------------------------------------------------X
A. KATHLEEN TOMLINSON, Magistrate Judge:
The parties contacted my Chambers today by telephone to address a dispute which arose
regarding depositions. Defendant’s counsel asserted that he was entitled to complete the
deposition of a non-party witness which had begun on Tuesday before presenting the remainder
of his witnesses. The parties reported that Defendant had taken the non-party witness’s
deposition for a little more than six hours.
After hearing from both sides, I explained that, pursuant to Federal Rule of Civil
Procedure 37(d)(1), Defendant is entitled to take the non-party witness’s deposition for a total of
seven hours. Under the Federal Rules, neither party is entitled to priority in the scheduling of
depositions. Here however, because Defendant’s counsel served deposition notices but
Plaintiff’s counsel did not, the deposition schedule agreed upon initially by the parties is to be
given effect. Accordingly, I directed Plaintiff’s counsel to contact the non-party witness
immediately to see if he is available to appear for the remainder of his deposition tomorrow
morning. This will allow Defendant to complete the non-party witness’s deposition, after which
Plaintiff can take the deposition of Defendant’s witness, Ms. McGuire. The parties agreed that if
the non-party witness is not available in the morning, Plaintiff’s counsel will begin the deposition
of Ms. McGuire and interrupt that deposition, if necessary, to complete the non-party witness’s
deposition when he is available.
SO ORDERED.
Dated: Central Islip, New York October 22, 2009
/s/ A. Kathleen Tomlinson A. KATHLEEN TOMLINSON U.S. Magistrate Judge
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