United States District Court, D. New Jersey
August 10, 2005.
SISTERS OF ST. DOMINIC OF CALDWELL, NEW JERSEY, Plaintiff,
ALLIED IRISH BANK, p.l.c., Defendant.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on Defendant Allied Irish
Bank's ("AIB"), appeal of an Order of the Honorable G. Donald
Haneke denying AIB's motion to compel the deposition of Robert I.
Podvey, Esq., who serves as trial counsel for Plaintiff, The
Sisters of St. Dominic of Caldwell, New Jersey ("The Sisters").
This Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1332.
FACTS AND BACKGROUND
On May 12, 2005, Judge Haneke denied AIB's motion for leave to
take the deposition of Robert Podvey, Esq. See May 12, 2005
Order, Attached to Hawke Decl., Ex. A. On June 9, 2004, Judge
Haneke had signed an Amended Scheduling Order which extended the
discovery deadline to August 31, 2004 and permitted AIB to
proceed with attorney depositions by way of written
interrogatories. On May 2, 2005, AIB's counsel drafted a letter
to Judge Haneke outlining its reasons for seeking to take an oral
deposition of Robert Podvey and its reasons why the deposition on
written questions was not satisfactory. As noted immediately
above, that motion was denied and the present appeal followed.
I. Standard of Review
A United States Magistrate Judge has broad discretion in
deciding a discovery motion. Fed.R.Civ.P. 72(a). "Where a magistrate judge is authorized to exercise his or her discretion,
the decision will be reversed only for an abuse of discretion."
Cooper Hospital/University Med. Ctr. v. Sullivan,
183 F.R.D. 119, 127 (D.N.J. 1998); Lithuanian Commerce Corp. v. Sara Lee
Hosiery, 177 F.R.D. 205, 214 (D.N.J. 1997). "This test displays
considerable deference to the determination of magistrates in
such matters." 7 Moore's Federal Practice ¶ 72.03(7.-3) at
On appeal from such an order, the scope of this Court's review
is narrow. Local Rule 72.1(c)(1)(A) governs appeals from
non-dispositive orders of United States Magistrate Judges. It
directs the Court to consider an appeal from a non-dispositive
Magistrate's order and set aside any portion of it found to be
"clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a); Cipollone v. Liggett Group, Inc.,
785 F.2d 1108, 1120 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987).
A finding is "clearly erroneous" when, "although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." Anderson v. City of Bessemer,
470 U.S. 564, 573 (1985); Republic of Philippines v. Westinghouse
Elec. Corp., 132 F.R.D. 384, 387 (D.N.J. 1990) (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). II. The Magistrate's Ruling is Affirmed
AIB claims that when it first became apparent that Mr. Podvey
participated in the negotiations for, reviewed and commented upon
the draft Loan Agreement, AIB sought to take his deposition or
the deposition of a designee of his law firm. AIB submits that a
Rule 30(b)(6) subpoena and notice of deposition dated February 5,
2004 was served upon the Podvey firm. AIB claims that the law
firm first rejected the subpoena and then consented to a
deposition of a designee of the firm on May 28, 2004. Thereafter,
Mr. Podvey's law firm rejected the subpoena and announced that no
representative of the firm would appear because the subpoena was
allegedly an effort to disqualify Mr. Podvey as trial counsel.
After Judge Haneke limited a deposition to written questions, AIB
propounded questions to Mr. Podvey. AIB alleges that the written
answers were "in significant ways unresponsive and
unsatisfactory;" however, AIB did not seek to compel further
answers at that time (or at any time thereafter) but rather made
a motion for summary judgment which this Court denied. See
Opinion and Order dated March 11, 2005. In addition, Plaintiff
states unequivocally that it will not call Mr. Podvey as a trial
witness, and AIB makes no showing that it would need to do so.
Judge Haneke's decision regarding the manner in which discovery
would be taken from Mr. Podvey and his firm was well within the bounds of his discretion in managing such discovery.
Upon receipt of inadequate answers to the written questions, AIB
could have moved to compel more complete and specific answers;
however, it chose not to do so. Neither Judge Haneke's decision
in 2004 to employ this discovery technique nor his determination
not to alter it in 2005, was "clearly erroneous or contrary to
law." L. Civ. R. 72.1(c)(1)(A). AIB's appeal is denied.
For the reasons set forth above, AIB's appeal from Magistrate
Judge Haneke's May 12, 2005 ruling is denied.
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