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Posted: May 14, 2015

Judge Scanlon Drops The Hammer On “Evasive” Non-Party Witness

In Allstate Ins. Co. v. Nazarov, 11-CV-6187 (E.D.N.Y. March 25, 2015), Magistrate Judge Vera M. Scanlon dealt with the evasiveness of a non-party witness who had repeatedly come up with excuses to avoid giving deposition testimony. Plaintiffs moved for discovery from the unrepresented witness, Alena Kuturova-Pidgurskyy, concerning alleged spoliation of evidence in the case.

After Kuturova-Pidgurskyy previously failed twice to appear for depositions, the court had ordered her to produce a doctor’s note to substantiate any claimed medical condition that would prevent her from giving testimony. While she did procure a note, it was light on specifics and Judge Scanlon was unimpressed. Noting that Kuturova-Pidgurskyy had “proffered a myriad of changing excuses as to why she would be unable to appear,” the court held that the “circumstances raise serious doubts as to the legitimacy of Ms. Kuturova-Pidgurskyy’s purported diagnosis.” Id. at 4-5.

As a result, the court permitted the plaintiffs to take “limited discovery as to Ms. Kuturova-Pidgurskyy’s purported medical condition.” Id. at 6. And because of Kuturova-Pidgurskyy’s “pattern of evasiveness and avoidance of appearing for Court-ordered depositions and spoliation hearings,” Judge Scanlon ordered Kuturova-Pidgurskyy to appear in person at the courthouse—under pain of monetary sanctions or her possible arrest for failure to comply—for questioning regarding her condition.

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