Appleby et al v. Morgan Stanley Smith Barney LLC et al

Filing 21

ORDER FOR LIMITED DISCOVERY AND FURTHER SUBMISSIONS. Signed by Judge Richard Seeborg on 8/7/14. (dt, COURT STAFF) (Filed on 8/7/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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For the Northern District of California

United States District Court

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ROBERT APPLEBY, et al.
Plaintiffs,
v.

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No. C 14-2318 RS
ORDER FOR LIMITED DISCOVERY
AND FURTHER SUBMISSIONS

MORGAN STANLEY SMITH BARNEY
LLC. et al.,
Defendants.
____________________________________/

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In connection with the pending motion to compel arbitration, plaintiff Robert Appleby has

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declared that he does not recall ever seeing the 2009 and 2012 “Financial Advisor/Investment

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Representative Retention Agreements.” He has not, however, provided any direct and clear

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statement regarding his understanding as to whether the signatures on those documents are his or

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not. While the opposition brief implies it is possible Appleby never executed those documents—

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presumably meaning either that the signatures are forgeries or that they are copies of his genuine

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signature fraudulently affixed to these documents by photocopying or some other process—his

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declaration falls short of providing sufficient facts to support such an inference.

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Failure of memory, standing alone, does not call into question whether these documents

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represent agreements into which Appleby knowingly entered in 2009 and 2012. Plaintiffs’ counsel

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asserted at the hearing, however, that Appleby may be able to offer additional testimony that would

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be relevant to determining whether he in fact executed these documents.

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Accordingly, defendants may take the deposition of Appleby for a period not to exceed two

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hours, and limited to the topic of the circumstances surrounding the formation and execution of the

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2009 and 2012 agreements. In the event there is any dispute that Appleby executed the Form U4 on

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which defendants also rely, the deposition may also cover that topic. If plaintiffs in good faith

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believe it necessary, they may take one deposition, two hours or less in duration, of a representative
of defendants regarding the formation of the 2009 and 2012 agreements and/or defendants’ record

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For the Northern District of California

United States District Court

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keeping practices with respect to those documents.

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The parties shall meet and confer to schedule the depositions at the earliest practical time.

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Within two weeks after they are completed, plaintiffs may file any additional declaration or

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declarations they deem appropriate addressing the issue of whether Appleby executed the 2009 and

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2012 agreements, and whether he executed the Form U4, if that is in dispute. Within one week

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thereafter, defendants may file a response to the further declaration(s). The matter will then be re-

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submitted for decision.

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IT IS SO ORDERED.

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Dated: August 7, 2014
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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