United States of America v. Wiesel
Filing
100
ORDER denying 95 Appeal of Chief Magistrate Judge Pollak's Decision by Chava Wolin. Defendant Wolin 95 objected to the 93 discovery order Magistrate Judge Pollak entered on April 1, 2022, which denied Ms. Wolin's 89 request to com pel a renewed deposition of co-defendant Annette Wiesel. For the reasons set forth in the attached memorandum and order, Ms. Wolin's objection to the April 1, 2022 order is OVERRULED and DENIED. This Court AFFIRMS Magistrate Judge Pollak's April 1, 2022 discovery order in its entirety. Ordered by Judge Kiyo A. Matsumoto on 5/20/2022. (Wong, Leah)
Case 1:17-cv-02927-KAM-CLP Document 100 Filed 05/20/22 Page 1 of 19 PageID #: 877
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
UNITED STATES,
MEMORANDUM AND ORDER
Plaintiff,
-against-
17-cv-02927(KAM)(CLP)
CHAVA WOLIN as Fiduciary of the Estate
of LEO ZIEGEL, CHAVA WOLIN
Individually, ANNETTE WIESEL, and DORIS
GREENBERG,
X
Defendants.
--------------------------------------KIYO A. MATSUMOTO, United States District Judge:
Defendant Chava Wolin (“Ms. Wolin”) has timely objected
to a discovery ruling by Chief Magistrate Judge Cheryl Pollak
entered April 1, 2022 (the “Discovery Order”), denying Ms. Wolin’s
request to compel a renewed deposition of her co-defendant Annette
Wiesel (“Ms. Wiesel”).
See ECF No. 93, Discovery Order; ECF No.
95, Fiduciary Defendant Chava Wolin’s Objections to Magistrate
Judge Pollak’s Memorandum and Order (“Wolin Objection”). The Court
has reviewed the Discovery Order and the parties’ submissions and
finds that the Discovery Order is neither clearly erroneous nor
contrary to law.
Accordingly, Ms. Wolin’s objection is overruled
and denied and Magistrate Judge Pollak’s April 1, 2022 Discovery
Order is affirmed in its entirety.
1
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Background
The facts relevant to Ms. Wolin’s objections to the
Discovery Order are as follows.
On May 12, 2017, the United States
commenced this action, pursuant to 31 U.S.C. § 3711(g)(4)(C),
seeking judgment against the Estate of Leo Ziegel (the “Estate”),
for an outstanding penalty of $1,435,235.00 assessed against Mr.
Ziegel, pursuant to 31 U.S.C. § 5321(a)(5) (known as an “FBAR
penalty”), for his failure to timely report his interest in a
foreign financial account. 1 Although the government initially sued
Annette Wiesel, one of Mr. Ziegel’s daughters, as Executrix of the
Estate in its initial Complaint, and Mr. Ziegel’s will named Wiesel
as Executrix, she declined to serve as Executrix.
Government Letter dated August 8, 2017.
ECF No. 6,
After Ms. Wiesel declined
to serve as Executrix, Ms. Wolin, Mr. Ziegel’s granddaughter, was
appointed fiduciary.
See ECF No. 35, Defendant’s Answer to Second
In the government’s initial and first amended complaint, the
government sought judgment against the Estate for an FBAR
penalty in the amount of $1,670,637.00. See ECF No. 1,
Complaint at 4, ¶ 28; ECF No. 11 at 4, ¶ 28. In its second
amended complaint and third amended complaint, the government
amended the FBAR penalty amount to $1,435,235.00. See ECF No.
31, Second Amended Complaint at 4, ¶ 30; ECF No. 87, Compl.3 at
4, ¶ 30. The government’s third amended complaint stated that
as of June 27, 2019, the Estate is liable to the government for
the FBAR penalty of $1,435,235.00, as well as associated late
payment penalties and interest, for a total amount of
$1,849,211.83. The Court takes note that statutory accruals
continue until the liability is paid in full. See ECF No. 87,
Compl.3 at 4, ¶30, 8.
1
2
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Amended Complaint.
The government’s third amended complaint names
Ms. Wiesel, Doris Greenberg, another of Mr. Ziegel’s daughters,
and Ms. Wolin individually as transferee defendants, and also
asserts claims against Ms. Wolin as Fiduciary of the Estate.
See
ECF No. 87, Third Amended Complaint (“Compl.3”) at 1, 4-8.
The government alleges that Mr. Ziegel, a resident of
Flushing, New York, and a citizen of the United States during the
calendar year 2008, did not report any income or losses from a
foreign
bank
account
he
owned
and
utilized
in
Switzerland
(“Account”), nor did he disclose the existence of the Account to
the Internal Revenue Service (“IRS”) on his 2008 tax return, or at
any other time.
ECF No. 87, Compl.3 ¶¶ 7, 21, 23.
The Account
was tied to a Lichtenstein foundation named Assadah Stiftung
(“Assadah”) through a trust agreement signed by Mr. Ziegel as the
beneficial owner of Assadah and the Account.
¶¶ 14-15, 17-20.
ECF No. 87, Compl.3
The United States alleges that as of June 30,
2009, the balance of the Account was at least $2,870,469.
29.
In
accordance
with
31
U.S.C.
§
Id. ¶
5321(a)(5)(C)(i),
the
government assessed a civil penalty against Mr. Ziegel in the
amount of $1,435,235.00 due to his willful failure to disclose the
Account to the IRS.
Id. ¶ 30.
Late payment penalties and interest
are also being sought by the United States.
3
Id. ¶ 32-33.
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On April 4, 2014, Mr. Ziegel died testate, and on January
2, 2018, the Surrogate’s Court, Queens County, appointed Ms. Wolin,
granddaughter of Mr. Ziegel, as fiduciary of the Estate of Leo
Ziegel.
alive,
Id. ¶¶ 2-3, 40.
Mr.
Ziegel
named
The Complaint alleges that when he was
his
daughters,
Ms.
Wiesel
and
Ms.
Greenberg, contingent co-beneficiaries the Account and Assadah.
Id. ¶¶ 38-39, 41.
The Complaint further alleges that in February
2010, a one-third share in Assadah and the Account that belonged
to Uri (Ziegel) Sharmi, Ms. Wolin’s father, was removed at Mr.
Ziegel’s request, but the share was later reinstated in November
2019.
Id. ¶ 43.
Since Ms. Wolin’s father is no longer alive, Ms.
Wolin succeeded to the one-third share.
Id.
The government
alleges that when Mr. Ziegel died in April 2014, his entire
interest in Assadah and the Account was transferred to Ms. Wiesel
and Ms. Greenberg in equal shares.
Id. ¶ 42.
As a result of the
transfer, the government alleges that the Estate became insolvent
and the transfer, which was made without reasonably equivalent
value in exchange, was constructively fraudulent as to the United
States as a creditor of Mr. Ziegel.
Id. ¶¶ 44-4.
The government
alleges claims for fraudulent transfer, fraudulent conveyance, and
unjust enrichment against Ms. Wolin, Ms. Wiesel, and Ms. Greenberg,
individually, and it seeks judgment for the civil penalty owed by
4
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the Estate and names Ms. Wolin as Fiduciary of the Estate.
Id. ¶¶
34, 47, 52, 55-57.
Ms. Wolin has brought litigation in New York Surrogate’s
Court, Queens County, on behalf of the Estate against Ms. Wiesel
in two separate petitions (the “State Petitions”).
Wiesel Response at 2.
ECF No. 90,
Ms. Wolin alleges in the State Petitions,
as she does here, that every transaction conducted by Mr. Ziegel
from May 2009 through the end of his life in April 2014 “should be
nullified due to a lack of capacity.”
crucial
to
this
defense
is
Ms.
Id.
Ms. Wolin claims that
Wiesel’s
testimony
of
her
involvement in and awareness of Mr. Ziegel’s financial affairs and
cognitive health during the relevant time.
Id. at 3.
In the instant dispute, Ms. Wolin moved for an order
compelling Ms. Wiesel to appear for a renewed deposition in this
action, asserting that because a signature page signed by Ms.
Wiesel in 2012 and attached to a 2005 document, titled “Durable
General Power of Attorney Effective At a Future Time,” was not
produced until November 2018, after Ms. Wiesel’s deposition in
August 2018, Ms. Wiesel’s deposition testimony in 2018 was false
and misleading.
ECF No. 89, Wolin Motion at 1.
Ms. Wolin argues
that, as a result, the parties were unable to adequately question
Ms. Wiesel about whether Mr. Ziegel was cognitively impaired to
such an extent that he could not willfully file an FBAR for the
5
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tax year 2008.
Id. at 2.
Ms. Wolin asserts that a missing
signature page in the foregoing document, which Ms. Wiesel signed
in 2012 as Mr. Ziegel’s attorney-in-fact, contradicts Ms. Wiesel’s
2018 deposition testimony that she “did not think” she had ever
served as Ziegel’s attorney-in-fact and “did not think” a physician
had certified him as suffering from diminished capacity.
Id.
Based on the foregoing signature page signed in 2012 by
Mrs. Wiesel, Ms. Wolin contends that her inability to question Ms.
Wiesel after production of this document will prevent her counsel
from gathering more information from Ms. Wiesel about the Assadah
Foundation and Mr. Ziegel’s health and cognitive functioning,
specifically in 2008 and 2009 when Mr. Ziegel failed to file the
FBAR.
Id. at 3.
Aside from Ms. Wiesel’s 2012 signature, Ms. Wolin
also references other facts her counsel has discovered since Ms.
Wiesel’s 2018 deposition testimony, such as Mr. Ziegel’s need for
home health care, his medications, visits to the emergency room,
and to a geriatrician.
Id. at 3-4.
Ms. Wolin cites this new
information as evidence of Ms. Wiesel’s decision to deliberately
withhold the 2012 signature page, all in an effort to avoid
disclosure
regarding
Mr.
Ziegel’s
health.
Id.
Ms.
Wolin
highlights that, indeed, numerous documents and information from
other
deposition
testimonies
of
6
Mr.
Ziegel’s
doctors
and
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accountants have emerged since 2018, and Ms. Wiesel should be
questioned about this new discovery.
Id.
In her opposition, Ms. Wiesel argues that she has already
been deposed four (4) times: on July 5, 2018 in Surrogate’s Court;
on August 8, 2018 in this action; on September 12, 2018 in
Surrogate’s Court; and on February 27, 2020 in a pending State
Petition proceeding.
See ECF. 90, Wiesel Response at 3.
Ms.
Wiesel also asserts that she was scheduled to be deposed on
December 21, 2021 by Ms. Wolin in a State Petition proceeding, but
Ms. Wolin declined to proceed with the deposition, waiving her
right to do so.
Id.
Ms. Wiesel characterized the instant request
to depose her again as “abusive” and not based on any current
deficiency in Ms. Wiesel’s document production.
Id. at 1.
Ms. Wiesel asserts that she did not possess her 2012
signature page upon which Ms. Wolin relies, and thus, could not
and did not produce it, and further asserts that the document has
no bearing on Mr. Ziegel’s failure to file an FBAR for 2008 by
June 30, 2009, or his competence or lack thereof in 2009.
2-3.
Id. at
According to Ms. Wiesel, she did not have the signature page,
“likely
because
the
signature
page
was
sent
directly
to
Mr.
[Richard] Levine for use in dealing with the IRS on behalf of Mr.
Ziegel.”
Id. at 2.
It was Mr. Levine who produced Ms. Wiesel’s
2012 signature page by including it in the foregoing 2005 document
7
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in his November 2018 production.
Id. at 3.
Ms. Wiesel stated
that though she did not have the 2012 signature page in her July
2018 production, she produced another document dated July 13, 2011,
in which Mr. Ziegel also executed a power of attorney, appointing
other representatives to appear on his behalf with the IRS.
Id.
On April 1, 2022, Magistrate Judge Pollak denied Wolin’s
motion to compel Ms. Wiesel to appear for a renewed deposition.
See ECF No. 93, Discovery Order.
Magistrate Judge Pollak noted
that Ms. Wolin had sufficient documentation and opportunity during
Ms. Wiesel’s 2018 deposition to investigate Ms. Wiesel’s knowledge
of her father’s cognitive and physical health.
Id. at 6-7.
Magistrate Judge Pollak was not convinced that Ms. Wolin had new
information that justified a renewed deposition of Ms. Wiesel.
On April 12, 2022, Ms. Wolin appealed Magistrate Judge
Id.
Pollak’s Discovery Order, arguing that the denial of an order to
compel Ms. Wiesel to a submit to renewed deposition in this matter
was
clearly
erroneous
and
Procedure Rule 26(b)(2)(C).
5-10.
contrary
to
Federal
Rule
of
Civil
See ECF No. 95, Wolin Objection at 1,
Ms. Wolin’s primary objection is that her counsel was not
able to depose Ms. Wiesel about the central issue of Mr. Ziegel’s
cognitive impairment due to the nature of Ms. Wiesel’s responses
in 2018, which Ms. Wolin characterizes as false and misleading.
Id. at 5.
Ms. Wolin asserts that the documents that have emerged
8
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since
Ms.
Wiesel’s
2018
deposition
now
provide
counsel
an
opportunity to discuss Mr. Ziegel’s declining health. Id. at 4-5,
7.
Upon a full review of the record, this Court disagrees
with Ms. Wolin’s contention that Judge Pollak’s denial of a renewed
deposition is clearly erroneous and contrary to law. Instead, the
Court finds that Magistrate Judge Pollak’s thorough and wellreasoned Discovery Order denying Ms. Wolin’s renewed deposition of
Ms. Wiesel has correctly considered and applied the facts and law.
DISCUSSION
I.
Standard of Review
A district court may set aside a magistrate judge’s order
concerning non-dispositive matters only if the order is “clearly
erroneous or contrary to law.”
§ 636(b)(1)(A).
Fed. R. Civ. P. 72(a); 28 U.S.C.
An order is clearly erroneous if the reviewing
court, based on all the evidence, “is left with the definite and
firm conviction that a mistake has been committed.” United States
v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004) (quoting Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985)).
An order is contrary to
law “when it fails to apply or misapplies relevant statutes, case
law, or rules of procedure.” Dorsett v. Cnty. of Nassau, 800 F.
Supp. 2d 453, 456 (E.D.N.Y. 2011) (quoting Catskill Dev., L.L.C.
v. Park Place Entm’t Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002)).
9
A
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magistrate
judge’s
pretrial
discovery
rulings
are
generally
considered non-dispositive and are reviewed under the “clearly
erroneous or contrary to law” standard of review.
Fed. R. Civ. P.
72(a); 28 U.S.C. § 636(b)(1)(A); see also Thomas E. Hoar, Inc. v.
Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990) (finding that
matters
involving
pretrial
discovery
are
generally
considered
“‘nondispositive’ of the litigation” and thus are subject to the
“clearly erroneous or contrary to law standard” on review by a
district court).
“Pursuant to this highly deferential standard of review,
magistrate[] [judges] are afforded broad discretion in resolving
discovery disputes and reversal is appropriate only if their
discretion is abused.”
Dunkin’ Donuts Franchised Rests., LLC v.
1700 Church Ave. Corp., No. 07-CV-2446, 2009 U.S. Dist. LEXIS
24367, at *3 (E.D.N.Y. Mar. 24, 2009) (citation and internal
quotation marks omitted).
Thus, “a party seeking to overturn a
discovery ruling [by a magistrate judge] generally bears a heavy
burden.”
Travel Sentry, Inc. v. Trop, 669 F. Supp. 2d 279, 283
(E.D.N.Y. 2009) (citation and internal quotation marks omitted).
II.
Application
A.
The Order is Not Clearly Erroneous
Ms. Wolin objects to Magistrate Judge Pollak’s Discovery
Order arguing that the Discovery Order is clearly erroneous because
10
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it precludes Ms. Wolin from obtaining discovery on the central
issue of Ms. Wolin’s defense.
ECF No. 95, Wolin’s Objection at 5.
In support, Ms. Wolin notes that the Discovery Order “mistakenly
found”
that
the
issue
of
Mr.
Ziegel’s
health
and
cognitive
functioning was addressed at Ms. Wiesel’s deposition in 2018, when
it was not, because Ms. Wiesel testified that Mr. Ziegel’s the
“health was not an issue.”
Id. at 6.
Ms. Wolin states that her
counsel should be able to seek information in a renewed deposition
of Ms. Wiesel about new documents that were provided by Ms. Wiesel,
because
they
are
relevant
to
the
healthcare
that
Mr.
Ziegel
received around the time he was required to make the 2008 FBAR
filing.
Id.
This
erroneous.
Court
disagrees
that
the
Order
was
clearly
By citing to Ms. Wiesel’s deposition responses about
her father’s health, Ms. Wolin concedes that Mr. Ziegel’s health
and
cognitive
functioning
deposition in 2018.
were
Id. at 3-5;
addressed
in
Ms.
Wiesel’s
see also Marathon Ashland
Petroleum LLC v. Equili Co., L.P., No. 00CIV.2935(RMB)(KNF), 2004
WL 992196, at *4 (S.D.N.Y. May 5, 2004) (denying a deposition
request where movant lacked new information to question a witness
and had other opportunities to pursue discovery on an issue); City
of Almaty, Kazakhstan v. Ablyazov, No. 15 CV 05345, 2019 WL
4126445, at *7 (S.D.N.Y. Aug. 30, 2019) (declining to reopen
11
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depositions
on
newly
disclosed
documents
“already testified” about the transactions).
where
parties
had
In the transcript of
Ms. Wiesel’s 2018 deposition provided to the Court by Ms. Wiesel’s
counsel, counsel for the parties examined Ms. Wiesel about Mr.
Ziegel’s health, specifically referencing evidence of Mr. Ziegel’s
declining health.
4-7.
See ECF No. 90-1, Wiesel Response’s Exhibit at
Though Ms. Wolin notes that the government led most of the
2018 deposition, the excerpted transcript includes inquiry into
Ms. Wiesel’s role as Mr. Ziegel’s attorney-in-fact.
Ms.
Id.
Wolin’s counsel had an opportunity during Mrs. Wiesel’s deposition
and in subsequent depositions to address the same issues Ms. Wolin
again seeks to address in a renewed deposition.
Horizons,
No.
03
CIV.10100
WHP
RLE,
2004
WL
See Chang v. Safe
1874965,
at
*1
(S.D.N.Y. Aug. 20, 2004) (denying a request to reopen deposition
because movant had “ample time to depose” the party and “the
defendant’s answers [not being] responsive and pertinent to [sic]
questions” was not a compelling enough reason to reopen).
This
Court also notes that in 2021, Ms. Wolin waived her opportunity to
depose Ms. Wiesel in the State Petitions proceedings after she
obtained new documents.
ECF No. 90, Wiesel Response at 3.
Furthermore, despite Ms. Wolin’s dissatisfaction with
the alleged inadequacy of Ms. Wiesel’s responses, including her
frequent inability to recollect, this Court finds that Ms. Wolin
12
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was not then and is not now precluded from obtaining discovery
elsewhere
on
references
the
that
central
since
issue
Ms.
of
her
Wiesel’s
defense.
2018
Ms.
deposition,
Wolin
“new
information integral to Defendant's defense” was gathered "from
numerous documents, including Genworth's assessments, the home
care agency records, and the records of Leo Ziegel’s doctors from
appointments.”
ECF No. 95, Wolin Objection at 8.
The various
means by which the new information was obtained by Ms. Wolin
demonstrate that Ms. Wolin already has information relevant to Ms.
Wolin’s defense without deposing Ms. Wiesel again.
This Court
agrees with Magistrate Judge Pollak’s correct finding that the
“mere
fact”
that
a
party
“was
provided
additional
documents
containing further detail regarding a factual area previously
known to and addressed (to a limited extent) by [the party] during
the original depositions is not tantamount to receiv[]ing new
information” to justify reopening the deposition. Thompson v.
Spota, No. 14 CV 2473, 2017 WL 1155799, at *4 (E.D.N.Y. Mar. 27,
2017); see
also
Off.
Comm.
of
Unsecured
Creditors
of
Exeter
Holdings, Ltd. v. Haltman, No. CV135475JSAKT, 2016 WL 1180194, at
*4 (E.D.N.Y. Mar. 25, 2016) (stating that requests to reopen a
deposition
cannot
be
an
“en
masse
request”
or
a
“fishing
expedition” but should be “based upon and limited to particular
documents or evidence”).
There is no guaranteed right to conduct
13
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depositions based on the emergence of new information, especially
when there may be no new information to be gained by the deposition
itself.
Though the timing of the production of documents and Ms.
Wiesel’s deposition may not have been ideal, this Court does not
find Magistrate Judge Pollak’s denial of a renewed deposition to
be “clearly erroneous” and does not agree that a “mistake has been
committed.”
B.
The Order is Not Contrary to Law and Correctly Applies
Rule 26(b)(2)(C)
Ms. Wolin further objects to Magistrate Judge Pollak’s
Order, arguing that the judge misapplied Rule 26 (b)(2)(C) and
that all the factors weigh in favor of requiring Ms. Wiesel to
submit to a renewed deposition.
Ms. Wolin argues that contrary to
Magistrate Judge Pollak’s assessment, a renewed deposition of Ms.
Wiesel would not be unnecessarily cumulative, that Ms. Wolin would
not be able to obtain the same information from another witness,
and the benefit of Ms. Wiesel’s testimony to Ms. Wolin’s defense
outweighs the burden of a renewed deposition. This Court disagrees
with
Ms.
Wolin’s
contention
that
Magistrate
Judge
Pollak
misapplied Rule 26(b)(2)(C).
The Court acknowledges that the scope of discovery under
Federal Rule of Civil Procedure 26(b) is very broad, encompassing
14
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“any nonprivileged matter that is relevant to any party’s claim or
defense—including the existence, description, nature, custody,
condition, and location of any documents or other tangible things
and
the
identity
and
discoverable matter.”
location
of
persons
who
Fed. R. Civ. P. 26(b)(1).
know
of
any
Nevertheless,
discovery is not unrestricted, and the court must limit discovery
where it is “unreasonably cumulative or duplicative or can be
obtained from some other source that is more convenient, less
burdensome, or less expensive,” “the party seeking discovery has
had ample opportunity to obtain the information by discovery in
the action,” or “the burden or expense of the proposed discovery
outweighs its likely benefit.”
Fed. R. Civ. P. 26(b)(2)(C).
Ms. Wolin requests a second deposition of Ms. Wiesel,
stating that it would not be “unnecessarily cumulative” because
this time, counsel can specifically focus on Mr. Ziegel, “his need
for around-the-clock care in his home starting in May 2009, and
his inability to handle his financial affairs during that time.”
ECF No. 95, Wolin Objection at 8- 9.
In her request for a renewed
deposition, Ms. Wolin recounts various portions of Ms. Wiesel’s
2018
deposition
that
purportedly
demonstrate
Ms.
Wiesel
had
omitted important information, “[d]espite being asked multiple
questions about Leo Ziegel's health in his last years, including
about whether there had been any changes in Mr. Ziegel's health
15
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during that period [around 2008].”
ECF No. 89, Wolin Motion at 3.
It is clear from the record before the Court that the very areas
of inquiry that Ms. Wolin hopes to ask at a renewed deposition of
Ms. Wiesel, have already been explored.
Id.
Given that the stated
scope of the renewed deposition appears to be duplicative of
previous inquiries, the Court is persuaded that after four prior
depositions of Ms. Wiesel, and one declination by Ms. Wolin of
another, that a fifth deposition would be unnecessarily cumulative
and burdensome.
Id.; ECF No. 90, Wiesel Response at 3.; Thompson
v. Spota, WL 1155799, at *4 (denying a renewed deposition because
the existing deposition excerpts made clear that the movant had
opportunities to “fully develop[] the inquiry” to obtain the
relevant
information);
see
also
Dash
v.
Seagate
Tech.
(US)
Holdings, Inc., No. CV 13-6329 LDW AKT, 2015 WL 4257329, at *6
(E.D.N.Y. July 14, 2015) (finding a renewed deposition to be
“unnecessarily
cumulative”
because
counsel
had
opportunity
to
examine with follow-up questions in other depositions).
Furthermore, though Ms. Wolin asserts that she does not
have access to other vital fact witnesses, Ms. Wolin has identified
a number of various witnesses with knowledge of Mr. Ziegel’s
cognitive
and
physical
state
around
2008-2009,
including
Dr.
Siskind, two accountants that Mr. Ziegel had appointed in 2011
with powers of attorney, the
healthcare professionals who started
16
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providing “around-the-clock” care for Mr. Ziegel, Erin Kindler,
who was described in Ms. Wiesel’s 2018 deposition as someone who
had power of attorney for Mr. Ziegel around 2011, and Mr. Ziegel’s
“doctors and accountants who were deposed in 2019 and 2021.”
ECF
No. 89, Wolin Motion at 5; ECF No. 90, Wiesel Response at 3; ECF
No. 90-1, Wiesel Response’s Exhibit at 2; ECF No. 95, Wolin
Objection at 8-9.
Lastly, given that Ms. Wiesel frequently responded that
she could not recall certain events, this Court finds that any
potential benefit that Ms. Wolin hopes to gain by deposing Ms.
Wiesel again is outweighed by the burden and expense of re-deposing
Ms. Wiesel.
It is clear from the transcript that Ms. Wiesel
repeatedly asserted in her 2018 deposition that she does not
remember details of her father’s care or physical or cognitive
state over the years.
4-5, 7, 12-13.
ECF No. 90-1, Wiesel Response’s Exhibit at
Even when questioned with direct excerpts from
documents, such as Dr. Siskind’s medical note, Ms. Wiesel could
not provide new information or any recollection of events.
4.
Id. at
Ms. Wolin has alleged that Ms. Wiesel has not been forthcoming
in her deposition, but the Court is not convinced that a renewed
deposition of Ms. Wiesel would yield different testimony.
The Court has no reason at this time to discredit the
representations made by Ms. Wiesel.
17
Another deposition in which
Case 1:17-cv-02927-KAM-CLP Document 100 Filed 05/20/22 Page 18 of 19 PageID #: 894
Ms. Wolin’s counsel would pose questions that could have been posed
earlier
will
be
duplicative,
burdensome,
overly
broad
and
intrusive, and will cause the needless expenditure of time and
funds which Ms. Wolin is not willing to incur.
P. 26(b)(2)(C).
See Fed. R. Civ.
Moreover, to the extent that Ms. Wolin merely
seeks confirmation from Ms. Wiesel that her father was indeed
impaired
during
the
2008
FBAR
filings,
there
are
other
less
burdensome and less expensive means to obtain such information,
such as the existing health records and other witnesses.
See id.
If the purpose of a renewed deposition of Ms. Wiesel is simply to
attack the consistency or truthfulness of Ms. Wiesel, this Court
agrees with Magistrate Judge Pollak’s correct observation that a
trial would be a more appropriate means to do so.
Accordingly,
the Court finds that Magistrate Judge Pollak’s Discovery Order
denying Ms. Wolin’s motion to conduct another deposition of Ms.
Wiesel is not clearly erroneous or contrary to law and affirms
Magistrate
Judge
Pollak’s
denial
deposition.
18
of
Ms.
Wiesel’s
renewed
Case 1:17-cv-02927-KAM-CLP Document 100 Filed 05/20/22 Page 19 of 19 PageID #: 895
CONCLUSION
For the reasons stated above, Ms. Wolin’s objections to
Magistrate
Judge
Pollak’s
April
1,
2022
Discovery
Order
are
overruled and denied in their entirety, and the Discovery Order is
affirmed in its entirety.
SO ORDERED.
Dated:
May 20, 2022
Brooklyn, New York
_____/s/ Kiyo Matsumoto __
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
19
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