Rattray v. Cadavid

Background

Wentworth Rattray sued New York City Police Officers Jose Cadavid and Alyssa Trigueno. The officers had responded to a 911 call from Wendy Sandy, the mother of Rattray’s child. Although some facts remained disputed, the opinion states that Officer Cadavid entered Rattray’s apartment without a warrant to conduct a brief search for the child and stayed for about an hour while waiting for a supervisor. Officer Trigueno remained outside.

During discovery, Rattray sought to depose Sandy. The court allowed the deposition in light of Rattray’s self-represented status. Sandy agreed to participate without a subpoena. Rattray arranged a video deposition in Connecticut, but the court reporter was not legally authorized under federal law or Connecticut law to administer oaths there. The parties contacted the court at the beginning of the deposition, and the court suggested that the questioning proceed and that Sandy later review the transcript and attest to its accuracy before a notary.

Sandy did not provide a notarized attestation. At Rattray’s request, the court later allowed him to serve a modified subpoena explaining how Sandy could review, correct, and attest to the transcript. Sandy did not comply with that subpoena, but she signed the transcript on February 11, 2022, beneath a statement declaring under penalty of perjury that she had read it and that it was true and accurate, subject to any corrections. Her signature was not notarized.

Issue

The defendants asked the court to prevent Rattray from relying on Sandy’s deposition transcript in opposing their anticipated motion for summary judgment. Sandy’s testimony contradicted Officer Cadavid’s account of what Sandy had told him about Rattray, the child’s safety, drug use, and alleged drug dealers at the apartment. The testimony was particularly relevant to whether emergency circumstances justified Cadavid’s warrantless entry.

Court’s reasoning

Federal Rule of Civil Procedure 30 requires a deposition to be conducted before an authorized officer, under oath or affirmation, and requires that officer to certify the deposition. Because the reporter was not authorized to take sworn testimony in Connecticut, and because Sandy never attested under oath or before a notary that the testimony was accurate, the court held that Sandy’s deposition responses could not be treated as sworn testimony.

The court nevertheless concluded that the signed transcript was an unsworn declaration under penalty of perjury under 28 U.S.C. § 1746. That statute does not require notarization. The court explained that such declarations have the same evidentiary weight as affidavits and therefore could be considered in connection with the summary-judgment motion.

Disposition

The court denied the defendants’ request in ECF No. 204 to preclude Rattray from relying on Sandy’s deposition testimony. The opinion did not decide the separate summary-judgment motion; it stated that the court would issue a separate opinion addressing that motion.