Umbach v. Carrington Investment Partners (US) LP et al

Filing 167

RULING REGARDING ADDITIONAL DEPOSITION OF PLAINTIFF. Signed by Judge Joan G. Margolis on 10/11/2012. (Rodko, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-------------------------------------------------------X
:
JOSEPH UMBACH
:
:
:
V.
:
:
CARRINGTON INVESTMENT PARTNERS
:
(US), LP, CARRINGTON CAPITAL
:
MANAGEMENT, LLC and BRUCE ROSE
:
-------------------------------------------------------X

3:08 CV 484 (EBB)

DATE: OCTOBER 11, 2012

RULING REGARDING ADDITIONAL DEPOSITION OF PLAINTIFF
The factual and procedural history behind this far too acrimonious litigation has been
set forth in considerable detail in the substantive rulings of Senior U.S. District Judge Ellen
Bree Burns, namely her Ruling on Defendants' Motion to Dismiss, filed February 18, 2009
(Dkt. #30), 2009 WL 413346, and her Ruling on Cross Motions for Summary Judgment, filed
January 26, 2011 (Dkt. #137), 2011 WL 284590, as well as the multiple discovery rulings
issued by this Magistrate Judge,1 namely her Ruling on Plaintiff’s Motion to Compel, and on
Defendants’ Motions to Compel, filed October 9, 2009 (Dkt. #74), 2009 WL 3287537, Ruling
Regarding Defendants' Second Set of Interrogatories, filed January 22, 2010 (Dkt. #87),
Ruling on Discovery Disputes, filed April 30, 2012 (Dkt. #158), Ruling on Discovery Dispute
Regarding Costs, filed June 7, 2012 (Dkt. #159), Ruling on Discovery Disputes, filed
September 24, 2012 (Dkt. #164)["September 2012 Discovery Ruling"], Ruling on Discovery
Disputes, filed October 9, 2012 (Dkt. #165), and Ruling Following In Camera Review, filed
October 10, 2012 (Dkt. #166)["October 2012 In Camera Review Ruling"], familiarity with
which is presumed. Pursuant to the September 2012 Discovery Ruling, all discovery was to

1

On September 3, 2009, and again on October 1, 2009, Judge Burns referred the file to this
Magistrate Judge for discovery. (Dkts. ##56, 72).

be completed on or before September 28, 2012, except for the discovery that was still
outstanding or was addressed in that ruling, for which the deadline is November 9, 2012.
(At 3).
The pending discovery quarrel regarding a continued deposition of plaintiff has its
genesis in the letter of defense counsel, dated September 27, 2012 ["September 27 Letter
II"],2 followed by a letter from plaintiff's counsel, dated October 5, 2012 ["October 5 Letter
II"],3 and followed by defendants' letter five days later ["October 10 Letter."]4
According to defense counsel, plaintiff was deposed on August 17, 2012 for
approximately seven hours,5 but defense counsel was unable to complete the deposition, and
specifically made clear that additional hours were required. (September 27 Letter II at 1-2
& Plaintiff's Depo. at 320-21; October 10 Letter at 1-2).6

Defendants ask the Court to

2

Attached as Exh. 1 is the complete transcript of plaintiff's deposition, taken on August 17,
2012 ["Plaintiff's Depo."].
3

Attached is another complete transcript of plaintiff's deposition.

4

As was previously the case, if either side files an objection to this discovery ruling, then
the four letters will be docketed with the Clerk’s Office on CM/ECF. (Dkt. #87, at 2, n.2;
Dkt. #158, at 3, n.3; Dkt. #159, at 3, n.2; Dkt. #165, at 2, n.6).
5

The deposition began at 8:58 a.m. and concluded at 6:03 p.m., with multiple breaks.
(Plaintiff's Depo. at 2,322).
6

The final colloquy was as follows:
[DEFENSE COUNSEL]: I have more questions.
[PLAINTIFF'S COUNSEL]: I'm sure you do.

[DEFENSE COUNSEL]: I'm not going to finish today. You may have one
view as to whether it's possible or agreeable to resume. I have likely another—the
best I can tell you is I'm not finished. Hopefully we can reach an agreement on
this, if we can't–
[PLAINTIFF'S COUNSEL]: Well, we can take this issue up at another time.
[DEFENSE COUNSEL]: Sure.

2

exercise its "broad discretion" in permitting an extended deposition under FED. R. CIV. P.
30(d)(1) in that plaintiff is the "central figure in this lawsuit," there are "many, and often
complex[]" issues in this litigation, the deposition was "noticeably slowed by the fact that
[plaintiff] claimed unfamiliarity with almost every related document put in front of him,"
particularly with respect to his leverage investment programs with HSBC and BNP, and
plaintiff's "often meandering or non-responsive" answers. (September 27 Letter II at 2-3
(internal citations omitted); October 10 Letter at 2-3). In addition, defendants argue that
at the time of the deposition, they were not in possession of the documents from HSBC and
BNP regarding "haircuts," about which plaintiff "disclaimed anything but the most basic
recollection of such matters[,]" and which documents were the subject of the September
2012 Discovery Ruling and October 2012 In Camera Review Ruling (September 27 Letter II
at 3 (internal citations omitted); October 5 Letter at 4-5). Thus, defendants seek an
additional three-and-one-half hours with plaintiff, prior to the November 9 discovery

[PLAINTIFF'S COUNSEL]: I'm not in a position to agree to anything right
now. I would like to request a copy of the transcript, but in any event, I think at a
minimum, we all are tired and it makes sense to conclude and that's what we'd like
to do.
[DEFENSE COUNSEL]: Okay. I just want to make very clear for the record,
I'm willing to stay and ask more questions, but I understand your position.
[PLAINTIFF'S COUNSEL]: You know, I can tell [plaintiff] is extremely tired
and I just don't think that it makes sense and I think you've had a full and fair and
ample opportunity to cross-examine him, but in any event, we'll deal with this at
another time.
[DEFENSE COUNSEL]: Fair enough.
(Plaintiff's Depo. at 320-21).

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deadline. (September 27 Letter at 3).7
In his letter-brief in opposition, plaintiff argues that defense counsel failed to create
any record during the deposition of any shortcomings on plaintiff's part, that defendants'
"characterization of the deposition is dubious at best[,]" that plaintiff was asked questions
about documents he had not seen before, and that the "this case is a fairly simple one."
(October 5 Letter II at 1-3). In addition, plaintiff argues that any questions regarding the
BNP and HSBC documents ought to have been directed to the banks' employees during their
depositions. (Id. at 3-4).
Contrary to defendants' arguments, a careful reading of the deposition transcript does
not reflect plaintiff's lack of familiarity with "almost every related document put in front of
him," or "often meandering or non-responsive answers" by him. (September 27 Letter II at
2-3).8

However, contrary to plaintiff's arguments, a careful reading of the deposition

transcript explicitly reveals defense counsel having created a record of his need to continue
the deposition and of some shortcomings on plaintiff's part,9 and this case is hardly "a fairly
simple one[,]" as borne out by the extended and contentious discovery here, which
necessitated eight discovery rulings by this Magistrate Judge, including this one, seven of

7

The October 10 Letter sets forth the eleven remaining topics for questioning. (October 5
Letter at 2-3).
8

On two occasions, when the deposition was reaching its end, plaintiff's counsel reminded
his client that he "need[ed] to listen to the question and understand what's being asked[]" because
his "responses [were] kind of missing the target[,]" despite the fact that "it's late in the day and
we're all kind of tired and maybe you need a break, maybe I need a break. . . ." (Plaintiff's Depo.
at 231-32; see also id. at 312-13)("Mr. Umbach, I need you to listen carefully to the question. It
seems to me that maybe–I realize that we have a few minutes left, but you're not focusing on the
questions that are being asked, so please."). See also id. at 127 (instruction from plaintiff's
counsel to his client to "[l]isten to the question and answer the question."), 173 (same), 205-06
(same), 256 (same), 198 (instruction from plaintiff's counsel to his client to "[j]ust answer the
question."), 270 (defense counsel asked plaintiff to "just stick to my question.")
9

See notes 6 & 8 supra.

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which have been filed in the last six months alone. (October 5 Letter II at 1-3). Defense
counsel is correct, however, that plaintiff's deposition occurred prior to production of the
HSBC and BNP documents, which were the subject of the September 2012 Discovery Ruling
and October 2012 In Camera Ruling.
Therefore, defendants' request for an extended deposition of plaintiff is granted under
Rule 30(d)(1), so that defense counsel may depose plaintiff for an additional three-and-onehalf hours, with respect to any questions which defense counsel did not have an opportunity
to ask at the conclusion of the August 17, 2012 deposition and with respect to the HSBC and
BNP documents to be produced by October 22, 2012. Because plaintiff may be located in
Florida right now, if the parties agree, the deposition may be taken by video-conference
under Fed. R. Civ. P. 30(b)(4).
This is not a Recommended Ruling but a Ruling on discovery, the standard of review
of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72; and Rule 72.2 of the
Local Rules for United States Magistrate Judges. As such, it is an order of the Court unless
reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude
further appeal to Second Circuit); Caidor v. Onondaga County, 517 F.3d 601, 603-05 (2d
Cir. 2008)(failure to file timely objection to Magistrate Judge’s discovery ruling will preclude
further appeal to Second Circuit).

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Dated at New Haven, Connecticut, this 11th day of October, 2012.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

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