National Credit Union Administration Board v. RBS Securities, Inc. et al

Filing 524

ORDER regarding interpretation of Section 10(d) of the Master Discovery Protocol. Signed by Magistrate Judge James P. O'Hara on 5/13/2015. (ah)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
NATIONAL CREDIT UNION ADMINISTRATION
:
:
BOARD, etc.,
:
Plaintiff,
-v:
:
MORGAN STANLEY & CO., et al.,
:
:
Defendants.
:
:
And other NCUA Actions.
:
----------------------------------------X
UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
----------------------------------------X
NATIONAL CREDIT UNION ADMINISTRATION
:
BOARD, etc.,
:
Plaintiff,
:
-v:
:
RBS SECURITIES, INC., f/k/a GREENWICH
:
CAPITAL MARKETS, INC., et al.,
:
:
Defendants.
:
:
And other NCUA Actions.
:
----------------------------------------X

13cv6705
13cv6719
13cv6721
13cv6726
13cv6727
13cv6731
13cv6736

(DLC)
(DLC)
(DLC)
(DLC)
(DLC)
(DLC)
(DLC)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
5/13/15
/ /

11cv2340
11cv2649
12cv2591
12cv2648
13cv2418

(JWL)
(JWL)
(JWL)
(JWL)
(JWL)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
----------------------------------------X
NATIONAL CREDIT UNION ADMINISTRATION
:
BOARD, etc.,
:
Plaintiff,
:
-v:
:
RBS SECURITIES, INC., f/k/a GREENWICH
:
CAPITAL MARKETS, INC., et al.,
:
:
Defendants.
:
:
:
And other NCUA Actions.
----------------------------------------X

11cv5887 (GW)
11cv6521 (GW)
ORDER

HON. DENISE COTE, HON. JOHN W. LUNGSTRUM, and HON. GEORGE H. WU,
District Judges; and HON. JAMES P. O’HARA, Magistrate Judge:
On May 8, 2015, NCUA submitted a letter concerning Goldman
Sachs & Co.’s (“Goldman”) interpretation of § 10(d) of the
Master Discovery Protocol (“MDP”) entered in these coordinated
actions.

Section 10(d) provides:

All parties shall produce the transcripts of testimony
and affidavits/affirmations, including all exhibits,
from any and all RMBS matters . . . in which it or one
of its officers or employees was a party. The
testimony shall be treated as if taken in the Actions.
The parties shall endeavor to not subject witnesses to
the same questioning for which a transcript was
previously provided.
NCUA attached to its May 8 letter the transcript of its May
7, 2015 deposition of Brian O’Brien (“O’Brien”), who at one time
was the Chief Underwriter in Goldman’s due diligence department.
The transcript reveals that Goldman’s counsel instructed the
witness not to answer questions for extended periods while they

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reviewed prior deposition transcripts that they had produced
under § 10(d) to see if the question had been previously asked.
Sometimes, this delay would be followed with an instruction not
to answer the question at all.
Goldman’s counsel also made extended comments on the record
accusing NCUA’s counsel of flouting § 10(d).

Similarly,

Goldman’s counsel made numerous speaking objections that had the
effect of coaching the witness.
NCUA’s May 8 letter requests that Goldman be required to
re-produce O’Brien to complete his deposition without
disruptions, instructions not to answer, or speaking objections.
Goldman submitted a responsive letter on May 12, 2015,
explaining that O’Brien will return voluntarily to complete his
deposition.
Pursuant to Fed. R. Civ. P. 30(c)(2), “[a]n objection must
be stated concisely in a nonargumentative and nonsuggestive
manner.

A person may instruct a deponent not to answer only

when necessary to preserve a privilege, to enforce a limitation
ordered by the court, or to present a motion under Rule
30(d)(3).”
Section 10(d) of the MDP requires the parties to endeavor
to avoid duplicative questioning, but, for purposes of Fed. R.
Civ. P. 30(c)(2), it is not “a limitation ordered by the court”

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sufficient to permit counsel in these actions to instruct a
deponent not to answer.

Accordingly, it is hereby

ORDERED that in depositions in these coordinated actions
there shall be no speaking objections, no coaching of a witness,
no instructing a witness to wait while material produced
pursuant to § 10(d) is consulted, and no instructing a witness
not to answer (except as provided in Fed. R. Civ. P. 30(c)(2)).
IT IS FURTHER ORDERED that the parties shall confer and
attempt to reach agreement on the ground rules for questioning a
deponent about a document that was the subject of testimony in
that witness’s prior deposition(s).

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IT IS FURTHER ORDERED that, during a deposition, should a
dispute arise that requires immediate court intervention, the
parties may contact the Chambers of Magistrate Judge O’Hara,
[phone], and, in his absence, the Chambers of Judge Cote,
[phone], for resolution of the dispute.

Dated: May 13, 2015

__/s/ Denise Cote _______________
United States District Judge

Dated: May 13, 2015

__/s/ George H. Wu________________
United States District Judge

Dated: May 13, 2015

___/s/ John W. Lungstrum__________
United States District Judge

Dated: May 13, 2015

___/s/ James P. O’Hara____________
United States Magistrate Judge

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