Meyer Corporation U.S. v. Alfay Designs, Inc. et al

Filing 106

Minute Order summarizing and setting forth rulings made at a conference on November 15, 2012 regarding defendants' 97 Motion to Compel. See attached. (Albertsen, Joanne)

United States District Court
Eastern District of New York
MEYER CORP. U.S. v. ALFAY DESIGNS, INC. ET ANO.
10-CV-3647 (CBA)
MINUTE ORDER
This Minute Order summarizes the rulings made on the record
at a conference held on November 15, 2012 regarding defendants'
[97] Motion to Compel. The motion is granted in part and denied
in part.
1.
Deposition of Les Koenig: It appears that there is no
genuine dispute regarding the deposition of Mr. Koenig.
Therefore the parties should schedule his deposition to take
place as soon as he is healthy and available.
2. Transcript of prior deposition of Mr. Sandberg: Since
the parties did not contest this Court's jurisdiction to address
a discovery dispute pertaining to the subpoena on Mr. Sandberg,
this Court will address the issue pertaining to Mr. Sandberg's
deposition. In addition, plaintiff has provided representation
for Mr. Sandberg and at issue is a document of which plaintiff's
counsel was aware.
Plaintiff confirmed that it produced the transcript
subsequent to the filing of defendants' motion. The only
remaining issue is defendants' request for sanctions. The Court
finds that sanctions are not warranted since, as plaintiff
argues, the transcript of a prior deposition in a related
California lawsuit of Mr. Sandberg is not clearly responsive to
the document requests attached to the May 16, 2012 subpoena.
Furthermore, disclosure of the transcript is not warranted by
F.R.E. 612(a)(2) as a writing used to refresh a witness's
recollection prior to testimony. There is no indication that
"justice require the party to have [the document]," as mandated
by the Rule. F.R.E. 612(a)(2); see also Thomas v. Euro RSCG
Life, 264 F.R.D. 120, 122 (S.D.N.Y. 2010) (ordering production
where "it is in the interests of justice for defendants to be
able to cross-examine plaintiff by having access to notes that

plaintiff admitted to reviewing"); Dunkin' Donuts Franchised
Restuarants, LLC v. 1700 Church Ave. Corp., 07-CV-2446, at *2
(CBA) (MDG) (E.D.N.Y. 2008) ("production is only required if it
is 'necessary in the interests of justice'") (citing cases).
However, defendants' request for leave to re-open the
deposition of Mr. Sandberg is granted in the interest of truth
finding. Examination must be limited to areas of inquiry pursued
at the recent deposition of Mr. Sandberg about which the
transcript of the California deposition contains relevant,
previously undisclosed information.
3. Plaintiff's request to compel: Insofar as plaintiff's
reference in its opposition to defendants's failure to produce
stock certificates, certain documents and "hidden" e-mails is
intended to a motion to compel, the request is denied.
4. Plaintiff's supplemental disclosures: The Court finds
that defendants have been aware of Mr. Norman Schoenfeld at the
latest since they moved to quash his deposition in Texas. As to
Ms. Angela Culhane, she was an employee of a company that
transacted business with defendants. Therefore the Court finds
that the disclosures of these two persons were made "in a timely
manner" pursuant to Rule 26(e) and that the timing did not cause
defendants undue burden or surprise.
5. Discovery Deadline: Fact discovery is extended to
12/18/2012 to allow the parties to take the depositions of Mr.
Koenig, Mr. Sandberg, Mr. Schoenfeld and Ms. Culhane, if they
choose to do so. This Court will grant a further extension for
the deposition of Mr. Koenig if he is not able by the deadline to
appear at a deposition.

SO ORDERED.
Dated:

Brooklyn, New York
November 19, 2012
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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