Home TIMOTHY CROSS and TANYA IATRIDIS, Plaintiffs, v. ATUL JAIN and SUPRA JAIN, Defendants

MISC 19-000453

NOVEMBER 16, 2020

MIDDLESEX, ss.

FOSTER, J.

ORDER ALLOWING MOTION FOR FEES AND DENYING MOTION TO CONTINUE DEPOSITION

Plaintiffs Timothy Cross and Tanya Iatridis own and reside at the property at 6 Locust Avenue, Lexington, Massachusetts. Defendants Atul and Supra Jain own and reside at the property at 996 Massachusetts Avenue, Lexington, Massachusetts. The two properties abut at their side and rear, respectively. This action concerns the location of the boundary between the properties. Before the court are two motions: the Motion by Defendants to Compel Plaintiffs to Pay Deposition Fees of Defendants' Expert (Motion for Fees), and Plaintiffs' Motion to Continue Bernardi Deposition (Motion to Continue Deposition). Oppositions to both motions have been filed. Pursuant to Land Court Rule 6, the court decides both motions without hearing.

Motion for Fees

In the Motion for Fees, the defendants seek to enforce the court's order of July 16, 2020, that the plaintiffs pay the fees of defendants' expert witness, Ken Anderson, for his deposition testimony, at the rate of $200 per hour for a minimum of four hours. Mr. Anderson appeared for his deposition by Zoom on October 2, 2020. The total time for the deposition, including breaks and lunch, was 7.5 hours. The defendants therefore seek payment for Mr. Anderson's fees at $200 per hour for 7.5 hours, or $1,500.

The plaintiffs argue that Mr. Anderson should not be paid for the time spent on breaks and for lunch. Their reasoning is that, because Mr. Anderson was deposed by Zoom in his office, he did other work during these breaks, and therefore is attempting to engage in "double dipping." The plaintiffs further argue that the deposition only lasted as long as it did because Mr. Anderson was evasive in his answers about his survey.

Plaintiffs' arguments miss the mark. Time spent by a witness at a deposition includes all the time the witness spends at the deposition, from the time the deposition begins until the time it ends. This includes the time in the middle for breaks and lunch. It is unreasonable to parse Mr. Anderson's time to determine if he did work on other matters during breaks, even if he was in his office. He was in his office solely for the deposition, and was obligated to be available for the deposition for the entire time it took, including breaks. He was not free to do other things. Whether he could slip in a response to an email or a return phone call during a break is irrelevant; he was still at the deposition. As for Mr. Anderson's answers, the court has reviewed the transcript of the deposition, and finds nothing in his testimony that rises to the level of unreasonable evasiveness. There are no grounds for discounting Mr. Anderson's fees for the deposition. The Motion for Fees is ALLOWED. The plaintiffs are ORDERED to pay the defendants $1,500 for Mr. Anderson's fees within ten (10) days of the date of this Order.

Motion to Continue Deposition

In an order docketed August 12, 2020, and clarified on September 17, 2020, the court allowed the plaintiffs to depose Thomas Bernardi on "areas of inquiry . . . limited solely to the content of his conversations with plaintiffs' surveyor and the Town of Lexington." Mr. Bernardi was deposed on October 5, 2020. On October 19, 2020, the continued deposition of Atul Jain was conducted. At that deposition, Mr. Jain stated, as he has at other times, his belief that the plaintiffs' actions are motivated by racial bias against Ms. Jain and him. As part of this testimony, he stated that Mr. Bernardi had told Ms. Jain that the plaintiffs are racist. The plaintiffs, not unreasonably, have moved to reopen Mr. Bernardi's deposition to ask him if he did indeed make such a statement.

Mr. Jain's statements, and their potentially defamatory nature, are not to be taken lightly. Nevertheless, Mr. Bernardi's deposition will not be reopened. The sole issues in this action are the location of the boundary between the parties' properties and their respective claims of adverse possession and trespass and nuisance. The motivation of the plaintiffs in litigating this action are not relevant, and the effect of the defendants' accusations do not from part of damages for trespass or nuisance. The court will hear no evidence from the Jains about these beliefs. The evidence at trial will be directed to the boundary, adverse possession, and trespass and nuisance issues only. For these reasons, the Motion to Continue Deposition is DENIED. [Note 1]

SO ORDERED.


FOOTNOTES

[Note 1] This is not to say, however, that Mr. Jain's statements, or, if he carries them out, his threats to contact Ms. Iatridis's employer, could not be actionable. Such an action, however, would not be within the subject matter jurisdiction of the Land Court