New Orleans City v. AMBAC Assurance Corporation et al

Filing 382

ORDER AND REASONS re 367 MOTION in Limine to CONCERNING THE CITYS RULE 30(b)(6) BREACH AND DAMAGES WITNESS. Signed by Judge Kurt D. Engelhardt.(bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE CITY OF NEW ORLEANS

CIVIL ACTION

VERSUS

NO. 08-3949

AMBAC ASSURANCE CORPORATION, ET AL

SECTION “N” (1)

ORDER AND REASONS
Before the Court is Defendant's Motion in Limine Concerning the City's Rule 30(b)(6)
Breach and Damages Witness (Rec. Doc. 367), which is opposed by Plaintiff City of New Orleans
("City") (Rec. Doc. 380).
The Complaint in this litigation was filed in July 2008. In 2011, Defendants noticed out the
deposition of the City of New Orleans pursuant to Rule 30 (b)(6) of the Federal Rules of Civil
Procedure. In response, the City designated a certain individual, Mr. Norman Foster, as its
representative to testify with regard to how the City was harmed by the Reciprocal Swap Agreement;
the amount of damages the City claims it suffered as well as the measure of each element of
damages and methodology for calculating such; and efforts to mitigate any damages sought in the
complaint, including efforts by the City to restructure the bond transaction at issue.
Pursuant to the Rule 30(b)(6) notice, Mr. Foster was presented and authorized by the City
to provide deposition testimony on these topics on September 1, 2011. To the Court's knowledge,
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Mr. Foster answered each and every question propounded to the best of his ability in his capacity
as the 30(b)(6) designee of the City.
Now, over three years later, on the eve of trial, the City has filed Proposed Findings of Fact
in which it evidently seeks to adduce testimony from two other individuals, Mr. Cedric Grant and
Mr. Troy Carter, which may now favorably impact the City's damage calculations. As reflected in
the City's Proposed Findings of Fact, the anticipated testimony of these two witnesses is, in some
respects, inconsistent with the previous sworn testimony of the City provided by its designee, Mr.
Foster. Of course, the City could have indicated that Cedric Grant and/or Troy Carter were best
suited to testify regarding damages upon receipt of Defendants' Notice of 30(b)(6) Deposition, or
appointed someone to testify after consultation with Cedric Grant and/or Troy Carter. The City
itself designated Foster to provide such testimony, and that testimony will be given considerable
weight over and above any new-found expedient testimony designed to conform to a damage model
otherwise not supported. To the extent these witnesses' testimony is inconsistent with the City's
designated 30(b)(6) witness, it will be discounted significantly.

Otherwise, this motion is

REFERRED TO THE MERITS.
New Orleans, Louisiana, this 27th day of February 2015.

________________________________________
KURT D. ENGELHARDT
United States District Judge

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