United States District Court, D. Colorado
DENA M. CANNON, JULIANA VAN TUIL, and SUZANNA BOLDEN, on behalf of themselves and others similarly situated, Plaintiffs,
TIME WARNER NY CABLE LLC, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY FROM OPT-IN PLAINTIFF CYNTHIA VICKERS (Docket No. 199)
MICHAEL J. WATANABE, Magistrate Judge.
Pending before the Court, and referred to the undersigned by District Judge Raymond P. Moore, is Defendant's Motion to Compel Further Deposition Testimony from Opt-In Plaintiff Cynthia Vickers. (Docket Nos. 199 & 200.) The Court has reviewed the parties' filings (Docket Nos. 199, 207, & 209); taken judicial notice of the Court's entire file for this case; and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court makes the following findings of fact, conclusions of law, and order denying the motion.
Defendant argues that (1) Plaintiffs' counsel improperly coached Opt-In Plaintiff Cynthia Vickers to alter her testimony during a break in a deposition, and (2) as a result, various sanctions should be imposed, including a re-deposition of Ms. Vickers for the purpose of establishing what her attorneys told her during the deposition break. It is undisputed that Plaintiffs' counsel engaged in a conversation with the deponent during a break in deposition testimony. It goes without saying that attorneys are not allowed to counsel witnesses into changing their testimony, during depositions or otherwise. Cf. Chassen v. Fidelity Nat. Title Ins. Co., 2010 WL 5865977 (D. N.J. July 21, 2010) (where deponent's counsel admitted discussing testimony with witness during break in deposition, deposing attorney entitled to inquire into the discussion). But see McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001) (questioning the validity of the precedent relied upon in Chassen, Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993)). But there is no bar on attorney consultation with a client during the client's deposition, as a general matter - so long as no question is pending. See, e.g., McKinley Infuser, 200 F.R.D. 648, 650. Here, for the following reasons, Defendant has failed to show any reason for suspicion.
Defendant's case is premised on the following interpretation of events: (1) Ms. Vickers testified to certain facts; (2) during a break in the deposition, Ms. Vickers conferred with her attorneys; then (3) Ms. Vickers testified to the exact opposite facts. Indeed, this would be a damning sequence of events - if it happened. But it did not. The bulk of Ms. Vickers's testimony prior to the break is fully consonant with her testimony after the break. Defendant's argument to the contrary cherry-picks snippets of testimony.
To provide context: The dispute in this case is whether the plaintiffs (call-center workers) were lawfully compensated for time spent working off the clock. According to plaintiffs, while the company's official policy forbade such off-the-clock work, de facto policy compelled it. The alleged off-the-clock work came in two varieties: (1) loading up programs before logging into one's computer so that one could begin fielding calls promptly upon logging in; and (2) wrapping up paperwork off the clock, either on break or at the end of one's shift, so that one could complete more calls while on the clock. Faced with these claims, Defendant's depositions focus on establishing that (1) the plaintiff did not in fact work off the clock, in either of those two fashions, and (2) if the plaintiff did so, such conduct was knowingly contrary to company policy.
Against this background, the following colloquy appears in Ms. Vickers's deposition:
Q. We have just reviewed records spanning two years, and we can go through the third year of records if you want but would it be a fair statement to say that you regularly came in between less than five to seven minutes prior to your shift to clock in?
MR. LAIRD: Objection. You can answer.
A I do not quite agree with that.
Q Okay. Well, why don't you agree with that based on the records that we have reviewed?
A And, again, because of the positions that I held.
Q So in the positions that you held as a tier one rep, a tier three rep and a help desk rep allowed you to come in within ...