Attorney Ravi Batra Wins Right To Depose Defendant Parties From the TV Show Law & Order

Ravi Batra, Plaintiff

against

Dick Wolf, LYDIA MAYBERRY, ERIC OVERMYER, NOAH BAYLIN, MARY GAMBARDELLA, JENNIFER VON MAYRHAUSER, RUTH PONTIOUS, SANDY DEBLASIO, ANNE NEWTON-HARDING, MICHAEL STRUK, PARK DIETZ, WOLF FILMS, RICHARD SWEREN, PETER JANKOWSKI, JEFFREY HAYES, MATTHEW PENN, MICHAEL S. CHERNUCHIN, DAVID POST, LORENZO CARCATERRA, AARON ZELMAN, MARC GUGGENHEIM, GARY KARR, WILLIAM N. FORDES, ROZ WEINMAN, ARTHUR W. FORNEY, WENDY BATTLES, KATI JOHNSTON, RICHARD DOBBS, LYNN KRESSEL CASTING, NBC TELEVISION, UNIVERSAL NETWORK TELEVISION LLC, NBC UNIVERSAL NY, AND UNIVERSAL STUDIOS, Defendants.

116059/2004
Plaintiff
Ravi Batra Esq.
142 Lexington Avenue, New York, NY 10016

For Defendants
Elizabeth McNamara Esq.
Davis Wright Tremaine, LLP
1633 Broadway, New York, NY 10019

Lucy Billings, J.

I.INTRODUCTION

Plaintiff, a New York attorney, sues defendants, all associated in various capacities with the television series Law & Order, for defamation arising from the depiction of a lead character in the "Floater" episode of Law & Order. He claims the episode was based on the scandal involving crimes by attorney Paul Siminovsky and Justice Gerald Garson, but cast an Indian American of plaintiff's age with his first name in the Siminovsky role.

Plaintiff moves to compel disclosure. C.P.L.R. § 3124. This decision and order address plaintiff's notices demanding depositions of defendants Dick Wolf, Peter Jankowski, Jeffrey Hayes, and Kati Johnston, to which defendants have objected. C.P.L.R. § 3107. Upon oral [*2]argument June 17 and July 8, 2010, for the reasons explained below, the court grants plaintiff's motion to the extent of compelling these defendants' depositions, on the conditions specified.

"Any party may take the testimony of any person by deposition," without an initial showing of materiality. C.P.L.R. § 3106. See Seltzer v. Bayer, 272 AD2d 263, 266 (1st Dep't 2000); Fasciglione v. D.C.D. Advert., Ltd., 256 AD2d 215 (1st Dep't 1998). Although C.P.L.R. § 3103(a) confers "broad discretion" on the court to issue protective orders denying or limiting disclosure, including depositions, "to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person," see Lipin v. Bender, 84 NY2d 562, 570 (1994); Jones v. Maples, 257 AD2d 53, 56 (1st Dep't 1999), the rule disfavors limitations. Emile v. Big Brothers/Big Sisters of New York City, Inc., 292 AD2d 297, 298 (1st Dep't 2002).

II.PRECLUDING DEFENDANTS' DEPOSITIONS

As named defendants, Wolf, Jankowski, Hayes, and Johnston must anticipate expending time and effort defending themselves and thus disclosing information relevant to their defenses. See C.P.L.R. § 3101(a)(1) and (2). Only the most extreme circumstances would shield defendants from their depositions, such as systematic harassment by plaintiff, including breaking into and entering defendants' apartments and distributing forged obscene images of defendants to their family, friends, and associates, or defendants' severe psychiatric disorders such that a deposition would endanger their mental health. Jones v. Maples, 257 AD2d at 56-57; Button v. Guererri, 298 AD2d 947 (4th Dep't 2002). Defendants have not indicated any remotely comparable circumstances.

The standard allowing disclosure of "all matter material and necessary," C.P.L.R. § 3101, is by those terms broad and to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406 (1968); Osowski v. Amec Const. Mgmt., Inc., 69 AD3d 99, 106 (1st Dep't 2009). Defendant Wolf Films, a business entity of unspecified form, was responsible for production of Law & Order. Defendant Wolf, the Chairman of Wolf Films, had ultimate authority over production of the Law & Order episode, received the reports clearing names for use on the show, and is in a position to know the contracts and relationships among the business entities associated with Law & Order or involved in the "Floater" episode's production. Defendant Matthew Penn, a producer of the episode, testified at his deposition that Wolf had authority to alter the show's scripts, authority Penn likely would not mention unless Wolf had exercised it.

Defendant Jankowski, the President of Wolf Films and in charge of that entity's budget and personnel, is likely in a position to clarify the precise responsibilities of the Law & Order staff. Even if the depositions of Wolf and Jankowski ultimately establish their lack of responsibility for any defamation, which they obviously have not accomplished yet, they still may have observed, heard, or otherwise learned information that would point plaintiff to admissible evidence. Even if they insist they remember nothing regarding the "Floater" episode, plaintiff is entitled to test their lack of memory and attempt to refresh it, whether about the script, developing it into a film, or any other information leading to admissible evidence.

As an Executive Producer of Law & Order, defendant Hayes oversaw the production of the "Floater" episode, was involved in readings of its script and auditions for the episode, and likely participated in or at least witnessed discussions or decisions regarding the alleged defamatory character. Again, even if not responsible for any defamation, he still may be witness to it, and, in any event, defendants have not as yet established their nonliability.

As a Line Producer for Law & Order, defendant Johnston was similarly in a position to have participated in or witnessed discussions or decisions regarding the character. Although Johnston in her affidavit denies working on the "Floater" episode, plaintiff is entitled to attempt to refresh her recollection given the contradictory deposition testimony by defendant Eric Overmyer, the writer of the "Floater" script. He testified that he did interact with Johnston in recording the episode, and she was present for readings of its script before the script was in final [*3]form.

Plaintiff suggests, and no evidence refutes, that this phase of script development may have been when a story based on the Siminovsky-Garson scandal evolved to cast an Indian American as the attorney involved. If, as plaintiff further alleges, contemporaneous publicity about him inspired the use of an Indian American attorney, any decision to carry out that inspiration involved business judgment, weighing the risks versus the episode's success, by executives like Jankowski and Wolf. Producers like Hayes and Johnston may well be in a position to identify who provided creative direction for Law & Order episodes' content. If Johnston did not work on the "Floater" episode, she may be in a position also to identify which line producer did.

III.LIMITING THESE DEFENDANTS' DEPOSITIONS

These defendants' status as employees at high levels that may remove them from direct knowledge of material information does not insulate them from depositions. Plaintiff seeks to depose all four witnesses in their capacity as named defendants, not merely in their capacity as employees of defendant. C.P.L.R. § 3101(a)(1) and (2). See Broadband Communications v. Home Box Off., 157 AD2d 479, 480 (1st Dep't 1990); Saieh v. Demetro, 201 AD2d 477 (2d Dep't 1994).

Insofar as these defendants' high level positions limit their knowledge, however, their removed positions may limit their depositions. If defendants continue to display a sincere lack of memory, plaintiff may not test and attempt to refresh it endlessly. Had defendants requested or the record indicated that the information to be gleaned from these defendants was equally available through a less burdensome disclosure device, the court might preclude depositions until after plaintiff used that device and then showed it to be insufficient. Button v. Guererri, 298 AD2d 947. Likewise, time limits may prevent "unreasonable annoyance" or harassment. C.P.L.R. § 3103(a). See Bielat v. Montrose, 249 AD2d 103 (1st Dep't 1998).

IV.CONCLUSION

For the foregoing reasons, the court grants plaintiff's motion to compel the depositions of defendants Dick Wolf, Peter Jankowski, Jeffrey Hayes, and Kati Johnston, subject to the following conditions, unless the parties stipulate otherwise. Plaintiff shall re-serve notice of the times and places for these defendants' depositions, consistent with C.P.L.R. §§ 3107 and 3110. Plaintiff shall be limited to three hours per deposition for his questions and each defendant's answers, exclusive of objections or colloquy by defendants' attorneys, as well as interruptions or breaks off the record.

DATED: August 23, 2010
LUCY BILLINGS, J.S.C.