Gary Friedrich Enterprises, LLC. et al v. Marvel Enterprises, Inc. et al

Filing 145

MEMORANDUM AND ORDER. For the reasons set forth in this memorandum and order, the plaintiffs' motion for an order reconvening the deposition of Roy Thomas at the defendant's expense is denied. (Signed by Magistrate Judge James C. Francis on 5/20/11) Copies Mailed By Chambers. (rjm)

(ECF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
GARY FRIEDRICH ENTERPRISES, LLC
:
and GARY FRIEDRICH,
:
:
Plaintiffs,
:
:
-against:
:
:
MARVEL ENTERPRISES, INC., et al., :
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
This

is

a

copyright

08 Civ. 1533 (BSJ) (JCF)
MEMORANDUM
AND ORDER

infringement

action

in

which

Gary

Friedrich Enterprises, LLC and its principal, Gary Friedrich,
allege that the defendants misappropriated characters and story
elements

developed

created

and

distributed the movie “Ghost Rider” and related merchandise.

The

plaintiffs

the

have

by

moved

Mr.

by

Friedrich

letter

for

when

an

they

order

reopening

deposition of a third-party witness, Roy Thomas, a former employee
of

defendant

Marvel

Entertainment,

LLC

(sued

here

as

Enterprises, Inc.) (“Marvel”), at Marvel’s expense.

Marvel
For the

reasons set forth below, the motion is denied.
Background
The
developed,

plaintiffs
created,

allege

that

articulated,

Mr.

Friedrich

particularized,

“conceived,
authored

and

brought to life” the comic book character known as Ghost Rider, his
alter ego Johnny Blaze, and the character and story elements that
formed the basis for the original Ghost Rider comic book (the
“Spotlight Work”) and subsequent series of comic books authored by
1

Mr. Friedrich and published by Magazine Management, the former
owner of Marvel Comics.

(First Amended Complaint (“Compl.”),

¶¶ 65-67, 91, 94; Transcript of Deposition of Roy Thomas dated
April 12-13, 2011 (“Thomas Dep.”) at 15).

The plaintiffs claim

that, in 1971, Mr. Friedrich conceived of all of the elements of
the Ghost Rider series independently and for his own profit, and
then initiated a meeting in which he persuaded Magazine Management
to publish comic books based on this idea.

(Compl., ¶¶ 82-84).

The plaintiffs concede that Magazine Management owned the copyright
for the Spotlight Work for the first twenty-eight years following
its publication, but argue that, after that period, the copyright
“reverted to the author of the work,” Gary Friedrich.

(Compl.,

¶¶ 95-98). Marvel argues, in contrast, that “Friedrich and several
other individuals engaged by MMC made creative contributions to”
the Spotlight Work and that it was a “work[] made for hire” for
which Marvel has been and continues to be the exclusive copyright
holder.

(Counterclaims, ¶¶ 14-15).

Roy Thomas was employed by Marvel Comics from 1965 to 1980,
working as a writer, editor, and, for some time, editor-in-chief.
(Thomas Dep. at 15, 176-86).

Mr. Thomas is also a longtime friend

of Mr. Friedrich and was responsible for helping Mr. Friedrich to
get a job at Marvel Comics in 1966.
137).

(Thomas Dep. at 12, 29-32,

Mr. Thomas participated in the creation of the Spotlight

Work and thus his testimony is highly relevant to resolving the
factual dispute at the heart of this action.
50, 55-57, 63-66, 69-70, 87-98).
2

(Thomas Dep. at 46-

Mr. Thomas was deposed in

connection with this case on April 12 and 13, 2011; at his
deposition,

he

was

asked

several

questions

regarding

his

interactions with the attorneys representing Marvel, which those
lawyers directed him not to answer on the ground that the substance
of

the

communications

privilege.

are

protected

by

the

attorney-client

(Thomas Dep. at 100-11, 126-28, 151-56).

Discussion
The plaintiffs contend that Marvel improperly asserted the
attorney-client privilege with respect to some of Mr. Thomas’s
responses to their questions and that they should be permitted to
inquire into the substance of the communications between Mr. Thomas
and counsel for Marvel.

(Letter of Charles S. Kramer dated April

15, 2011) (“Kramer Letter”) at 7).

In particular, the plaintiffs

contend, first, that the attorney-client privilege as it is applied
to former employees of the defendant corporations does not protect
the communications between counsel and Mr. Thomas (Kramer Letter at
3-6); and, second, that Marvel may not assert this privilege in any
event because it has not established that it is the successor
corporation to the companies with which Mr. Thomas had an employeremployee relationship (Kramer Letter at 6-7).

Marvel argues, in

response, that counsel is representing Mr. Thomas personally in
connection with his deposition in this case and that the attorneyclient privilege therefore protects their communications with him
irrespective of Marvel’s ability to assert any privilege.

(Letter

of Jodi A. Kleinick dated May 6, 2011 (“Kleinick Letter”) at 2, 45).

In the alternative, they contend that Marvel is indeed the
3

legal successor to Mr. Thomas’s employer and therefore is entitled
to assert the privilege with respect to its counsel’s conversations
with him; that these conversations are within the category of
former employee conversations immune from discovery under the
attorney-client privilege; and that, to the extent they are not,
they are protected by the work product doctrine.
Fleischer

dated

April

20,

2011

(“Fleischer

(Letter of David
Letter”)

at

2-3;

Kleinick Letter at 3-5).
A.

Attorney-Client Privilege and Work Product Doctrine

“The attorney-client privilege is the oldest of the privileges
for confidential communications known to the common law.”
Co. v. United States, 449 U.S. 383, 389 (1981).
“‘full

and

frank

communication

between

Upjohn

By facilitating

attorneys

and

their

clients,’” the attorney-client privilege lays the foundation for
effective representation.

United States v. Zolin, 491 U.S. 554,

562 (1989) (quoting Upjohn, 449 U.S. at 389).

The attorney-client

privilege protects from disclosure communications among clients and
counsel made for the purpose of obtaining legal advice, provided
that the communications were intended to be kept confidential and
the

privilege

has

not

been

waived.1

1

See

United

States

v.

The Federal Rules of Evidence typically control civil
actions
in
federal
court,
regardless
of
subject
matter
jurisdiction, although where state law supplies the rule of
decision, state law determines the existence and scope of the
attorney-client privilege. Fed. R. Evid. 501; accord Gulf Islands
Leasing, Inc. v. Bombardier Capital, Inc., 215 F.R.D. 466, 470
(S.D.N.Y. 2003); Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d
879, 892 (S.D.N.Y. 1999). Federal law always controls application
of the attorney work product doctrine. See Fed. R. Civ. P.
26(b)(3); Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70,
75 (N.D.N.Y. 2000). Here, the only claims remaining in the case
4

International Brotherhood of Teamsters, 119 F.3d 210, 214 (2d Cir.
1997); Amnesty International USA v. CIA, 728 F. Supp. 2d 479,
518-19 (S.D.N.Y. 2010).

The burden of establishing each of the

elements of the privilege rests on the party asserting it.

See In

re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002,
318 F.3d 379, 384 (2d Cir. 2003); Pure Power Boot Camp v. Warrior
Fitness Boot Camp, 587 F. Supp. 2d 548, 563 (S.D.N.Y. 2008).
It is beyond question that corporations as well as individuals
are entitled to assert the privilege.

See Upjohn, 449 U.S. at 386;

Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343,
348 (1985).

As the Supreme Court has observed, however,

[t]he administration of the attorney-client privilege in
the case of corporations . . . presents special problems.
As an inanimate entity, a corporation must act through
its agents. A corporation cannot speak directly to its
lawyers.
Similarly, it cannot directly waive the
privilege when disclosure is in its best interest. Each
of these actions must necessarily be undertaken by
individuals empowered to act on behalf of the
corporation.
Weintraub, 471 U.S. at 348.

Thus, for a solvent corporation,

corporate management, acting through its officers and directors,
has the authority to exercise the privilege, a power that must be
exercised consistently with management’s fiduciary duties.

Id. at

348-49.
“The work product doctrine ‘is intended to preserve a zone of

arise under the federal Copyright and Lanham Acts.
(Compl;
Counterclaims; Report and Recommendation dated June 26, 2009 at 3l;
Order dated May 3, 2009; Report and Recommendation dated May 4,
2011 at 1). Therefore, federal common law governs the application
of both the attorney-client privilege and the work product
doctrine.
5

privacy in which a lawyer can prepare and develop legal theories
and strategy “with an eye toward litigation,” free from unnecessary
intrusion by his adversaries.’”

William A. Gross Construction

Associates, Inc. v. American Manufacturers Mutual Insurance Co.,
262 F.R.D. 354, 359 (S.D.N.Y. 2009) (quoting United States v.
Adlman,

134

F.3d

1194,

1196

(2d

Cir.

1998)).

To

warrant

protection, a document or communication must have been prepared in
anticipation

of

litigation

by

or

for

a

party,

or

by

his

representative. Gulf Islands Leasing, Inc., 215 F.R.D. at 474. As
with the attorney-client privilege, the plaintiff bears the “heavy
burden” of establishing the applicability of the work product
doctrine.

In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d

180, 183 (2d Cir. 2007).
B.

Ownership of the Privilege
1.

Individual Representation

As an initial matter, counsel for Marvel argue that the
attorney-client privilege plainly protects their communications
with

Mr.

Thomas

deposition,

and

because
would

be

they

(Kleinick Letter at 2, 4).

were

“providing

representing
legal

him

advice”

at

to

the

him.

However, Mr. Thomas admittedly has not

paid for this representation. (Thomas Dep. at 104). In situations
such as this where a former employee is represented by counsel for
a

defendant

corporation

for

the

purpose

of

testifying

at

a

deposition at no cost to him, courts have not treated the former
employee as having an independent right to the privilege, even
where that employee believes that he is being represented by that
6

counsel.

See, e.g., Wade Williams Distribution, Inc. v. American

Broadcasting Companies, Inc., No. 00 Civ. 5002, 2004 WL 1487702, at
*1

&

n.2

(S.D.N.Y.

June

30,

2004)

(“The

mere

volunteered

representation by corporate counsel of a former employee should not
be allowed to shield information which there is no independent
basis for including within the attorney-client privilege.”); see
also Gioe v. AT & T Inc., No. 09 CV 4545, 2010 WL 3780701, at *1-2
&

n.1

(E.D.N.Y.

defendant’s
Defendant

Sept.

20,

2010)

attorney-client

also

represents

(applying

privilege
the

former

only

although
employee,

corporate

“counsel

for

at

for

least

purposes of his deposition,” and citing Wade Williams Distribution,
2004 WL 1487702, at *2); Price v. Porter Novelli, Inc., No. 07 Civ.
5869,

2008

WL

2388709,

at

*1-2

(S.D.N.Y.

June

11,

2008).

Therefore, to the extent that counsel’s communications with Mr.
Thomas

are

protected

by

the

attorney-client

privilege,

that

privilege belongs to Marvel.
2.

Corporate Successors

The plaintiffs contend that, to the extent Marvel argues that
communications between counsel for Marvel and Mr. Thomas are
privileged because Mr. Thomas is a “former employee,” Marvel does
not have “the right to assert any privilege belonging to Mr.
Thomas’[s] prior employer” because it has not met its burden of
establishing

that

the

privilege

remained

intact

as

Marvel’s

predecessor companies merged or were reorganized in bankruptcy.
(Kramer Letter at 2; Letter of Charles S. Kramer dated April 29,
2011 at 2).
7

“When ownership of a corporation changes hands, whether the
attorney-client relationship transfers as well to the new owners
turns on the practical consequences rather than the formalities of
the particular transaction.”

Tekni-Plex, Inc. v. Meyner and

Landis, 89 N.Y.2d 123, 133, 651 N.Y.S.2d 954, 959 (1996); accord
Orbit One Communications, Inc. v. Numerex Corp., 255 F.R.D. 98, 104
(S.D.N.Y. 2008); Postorivo v. AG Paintball Holdings, Inc., Nos.
2991, 3111, 2008 WL 343856, at *5 (Del. Ch. Feb. 7, 2008); see also
Del. Code Ann., tit. 8, § 259.

This rules applies for mergers, see

Bass Public Ltd. v. Promus Cos., 868 F. Supp. 615, 620 (S.D.N.Y.
1994), as well as for bankruptcy reorganizations, see In re Flag
Telecom Holdings, Ltd., Nos. 02 Civ. 3400, 04 Civ. 1019, 2009 WL
5245734, at *7 (S.D.N.Y. Jan. 14, 2009); see also Weintraub, 471
U.S. at 354-55.
lives

on

“As a practical matter, the predecessor company

when

notwithstanding

its
the

business

technical

acquisition and merger.”

operations

legal

changes

are

continued,

effected

by

the

Orbit One Communications, Inc., 255

F.R.D. at 104 (citing Tekni-Plex, Inc., 89 N.Y.2d at 134, 651
N.Y.S.2d

at

960).

“‘[W]here

efforts

are

made

to

run

the

pre-existing business entity and manage its affairs, successor
management stands in the shoes of prior management and controls the
attorney-client privilege with respect to matters concerning the
company’s operations.’”

Id. (quoting Tekni-Plex, Inc., 89 N.Y.2d

at 133, 651 N.Y.S.2d at 959); see also In re Flag Telecom Holdings,
Ltd., 2009 WL 5245734, at *7-10 (holding that, where bankruptcy
reorganization

created successor
8

entity

and

litigation

trust,

attorney-client privilege transferred to litigation trust based on
“practical consideration of the consequences of such a transfer”);
Bass Public Ltd., 868 F. Supp. at 620 (“‘[A] surviving corporation
following

a

pre-merger

merger

possesses

companies

.

.

all

.

of

the

includ[ing]

privileges
the

of

the

privileges

the

subsidiary company holds at the time the sale is completed.’”
(second and third alterations in original) (quoting Rayman v.
American Charter Federal Savings & Loan Association, 150 F.R.D.
634, 638 (D. Neb. 1993))); In re I Successor Corp., 321 B.R. 640,
653

n.4

(Bankr.

S.D.N.Y.

2005)

(“Examining

the

‘practical

consequences’ of a transaction . . . [means] examining as a
practical matter what claims or liabilities passed from or remained
with the seller pursuant to the transaction to determine whether
the attorney-client privilege was important to the transferee
and/or the trustee.”); Postorivo, 2008 WL 343856, at *5 (“[A]s a
practical matter, the business operations of NPS continue under the
management of KEE Action.
the

shoes

of

attorney-client

the

Consequently, . . . KEE Action stands in

former

privilege

NPS

that

management

NPS

formerly

and
held,

holds

the

including

pre-[acquisition] representation.”); cf. American International
Specialty Lines Insurance Co. v. NWI-I, Inc., 240 F.R.D. 401, 406
(N.D.

Ill.

2007)

(“[W]e

see

no

reason

to

deviate

from

the

well-established principle that the right to assert or waive a
corporation’s attorney-client privilege is an incident of control
of the corporation.”).
Marvel has submitted evidence establishing that, through a
9

series of mergers and one bankruptcy reorganization, control of
Magazine Management Company, Mr. Thomas’s former employer, passed
to Marvel Entertainment Group, Inc.; then to Toy Biz, Inc.; then to
Marvel Enterprises, Inc.; then to Marvel Entertainment, Inc.; then
to Marvel Entertainment, LLC.
F).

(Fleischer Letter at 2-3 & Exhs. A-

“[N]otwithstanding the technical legal changes effected” by

Marvel’s

prolific

reorganization

and

renaming,

the

“business

operations” of Marvel have continued, and, as a result, Marvel
Entertainment, LLC “controls the attorney-client privilege with
respect to matters concerning the company’s operations.” Orbit One
Communications, Inc., 255 F.R.D. at 104.

At the time of Mr.

Thomas’s employment, the business of Marvel -- which was owned by
Magazine Management -- was creating comic books.
14-18, 228-29).

(Thomas Dep. at

That continues to be part of Marvel’s business,

and indeed, those historic and continuing business operations are
the subject of this case.
as

a

practical

matter,

(Thomas Dep. at 146-49, 190-91).
it

is

proper for

the

Thus,

attorney-client

privilege, as it relates to former employees involved in producing
comic books, to remain vested in Marvel Entertainment, LLC.
Communications between counsel for Marvel and Mr. Thomas are
therefore privileged to the full extent that communications between
counsel for a corporation and former employees of that corporation
are privileged.
C.

Former Employees

“Virtually all courts hold that communications between company
counsel and former company employees are privileged if they concern
10

information

obtained

during

the

course

of

employment.”

Export-Import Bank of the United States v. Asia Pulp & Paper Co.,
232 F.R.D. 103, 112 (S.D.N.Y. 2005); accord Gioe, 2010 WL 3780701,
at *1; Surles v. Air France, No. 00 Civ. 5004, 2001 WL 815522, at
*6 (S.D.N.Y. July 19, 2001) (“The vast majority of federal cases
hold that communications between company counsel and former company
employees are protected by the attorney-client privilege if they
are focused on exploring what the former employee knows as a result
of his prior employment about the circumstances giving rise to the
lawsuit.”), aff’d, 2001 WL 1142231 (S.D.N.Y. Sept. 27, 2001).
Where the corporate employee is a former employee,
communications (1) which occurred during employment
remain privileged; (2) of whose “nature and purpose” was
for the corporation’s counsel to learn facts related to
a legal action that the former employee was aware of as
a result of his or her employment, are privileged
regardless of when they occurred; and (3) between a
corporation’s counsel “and a former employee whom counsel
does not represent, which bear on or otherwise
potentially affect the witness’ testimony” are not
privileged.
Nicholls v. Philips Semiconductor Manufacturing, No. 07 Civ. 6789,
2009 WL 2277869, at *2 (S.D.N.Y. July 27, 2009) (quoting Peralta v.
Cedant Corp., 190 F.R.D. 38, 41-42 (D. Conn. 1999)). However, this
final,

third

category

creates

“a

very

narrow

exception.”

Export-Import Bank of the United States, 232 F.R.D. at 112.
Nonetheless, “‘opposing counsel has the right to ask about matters
that may have affected or changed the witness’s testimony.’”

Wade

Williams Distribution, 2004 WL 1487702, at *1 (quoting Peralta, 190
F.R.D. at 41); see also Gioe, 2010 WL 3780701, at *2 (“[A]ny
communication between counsel and [the former employee], occurring
11

after [his] employment . . . that goes beyond [his] knowledge of
the circumstances [at issue], and beyond [his] activities within
the course

of

[]

employment

. .

.

is

not protected

by

the

attorney-client privilege.”).
Although there are some aspects of attorney communications
with former employees that are carved out of the attorney-client
privilege, many of these communications are nevertheless protected
under the aegis of the work product doctrine.

See Gioe, 2010 WL

3780701, at *3 (holding that “to the extent that communications
between Defense counsel and [the former employee] are specifically
counsel’s conclusions or opinions, they may be covered by work
product protection” but noting that this does not necessarily
preclude questions regarding other non-privileged communication);
Nicholls, 2009 WL 2277869, at *2 (“Moreover, communications between
a corporation’s counsel and former employee which are counsel’s
‘legal

conclusions

or

legal

opinions

that

reveal

[the

corporation’s] legal strategy’ may be protected by the work-product
doctrine.” (alteration in original) (quoting Peralta, 190 F.R.D. at
42)); Export-Import Bank of the United States, 232 F.R.D. at 112
(“Pre-deposition conversations may also be work product; to the
extent

[the

plaintiff]’s

attorneys

communicated

their

legal

opinions and theories of the case, their conversations are immune
from discovery.”); Surles, 2001 WL 815522, at *6 (“Additionally,
any information beyond the underlying facts of this case that []
might [be] unearth[ed] by questioning [the former employee] about
his conversations with [the employer]’s counsel would likely expose
12

defense

counsel’s

thought

processes

which

protection under the work product doctrine.”).

are

entitled

to

To the extent that

a meeting between a former employee and his former employer’s
counsel is

held

“to

discuss

the matters

concerning

which he

subsequently testified at his deposition,” it is “obvious that the
discussions at the meeting come within the broad purview of the
work-product doctrine.

Disclosure of statements made or questions

posed . . . at the meeting could tend to reveal [counsel’s]
thoughts about or analysis of the issues posed by this litigation.”
In re Gulf Oil/Cities Service Tender Offer Litigation, Nos. 82 Civ.
5253, 87 Civ. 8982, 1990 WL 108352, at *3 (S.D.N.Y. July 20, 1990).
Here, Mr. Thomas’s communications with Marvel’s counsel in
preparation for his deposition is protected by Marvel’s attorneyclient privilege.

Mr. Thomas is a former employee of Marvel, and

he was deposed in order to provide information about the origin of
the Spotlight Work -- “information obtained during the course of
[his] employment.”
F.R.D. at 112.

Export-Import Bank of the United States, 232

Indeed, his deposition was dominated by questions

regarding the business practices at Marvel while he was employed
there

and

the

Spotlight Work.

circumstances

surrounding

the

creation

of

the

Counsel for Marvel have represented that their

communications with Mr. Thomas covered only facts within the scope
of Mr. Thomas’s former employment.
2

(Kleinick Letter at 1, 4).2

The plaintiffs’ arguments at times appear to misapprehend
this standard, contending that “[p]re-deposition communications
between counsel for a corporate party and a non-party former
employee are not protected by the attorney client privilege to the
extent such communications concern matters not originally protected
13

Additionally, to the extent that Marvel’s counsel communicated with
Mr. Thomas in order to prepare him for deposition, any inquiry into
“statements made or questions posed” that may reveal counsel’s
legal analysis is barred by the work product doctrine.

In re Gulf

Oil/Cities Service Tender Offer Litigation, 1990 WL 108352, at *3.
The plaintiffs have not suggested, either at deposition or in
their letter briefs, any questions they might wish to ask that
would fall within the very narrow field of topics not covered by
the attorney-client privilege or the work product doctrine.
Indeed, most of the questions they asked regarding attorney-client
communications were extremely broad.
109, 152-53, 155).

(Thomas Dep. at 105, 107,

The only questions the plaintiffs suggest that

pertained to communications regarding matters outside the scope of
Mr. Thomas’s employment relate to previous accounts Mr. Thomas had
given of the creation of the work at issue here.
5; Thomas Dep. at 83-86, 99-104).

(Kramer Letter at

Concerning as they do the same

basic facts that are within the scope of Mr. Thomas’s former
employment, responses to these questions are also protected by the

while the employee was still working for the employer.” (Kramer
Letter at 7). However, it is not only communications with counsel
that took place during the employment that are covered, but all
communications with counsel about that employment, regardless of
whether those communications take place following the employee’s
termination. See Peralta, 190 F.R.D. at 41 (“[I]f the nature and
purpose of [counsel]’s communications with [the former employee]
was to learn facts related to [the underlying case] that [the
former employee] was aware of as a result of her employment, such
communications are also privileged, whenever they occurred.”).
Thus, any discussion between Mr. Thomas and counsel for Marvel
about Mr. Thomas’s work for Marvel -- including his role in and
memory of the creation of the Ghost Rider character, story, and
comic books -- is privileged under this standard.
14

privilege.

Furthermore, to the extent that these questions were

limited only to whether Mr. Thomas had “spoken to anybody at any
current or former Marvel company with respect to any statements
that [he had] made or been quoted as having made with respect to
[the Spotlight Work] in the last five years,” he appears already to
have answered the question.

(Thomas Dep. at 103-04).

In ruling under Rule 30(a)(2)(B) of the Federal Rules of Civil
Procedure whether to allow further examination of a person already
deposed, courts are guided by the standards set forth in Rule
26(b)(2), which requires, among other things, that the court limit
discovery

where

“the

party

seeking

discovery

has

had

ample

opportunity to obtain the information” or “the burden or expense of
the

proposed

discovery

outweighs

its

likely

benefit.”

The

attorney-client privilege was properly asserted in this case.
Moreover, the plaintiffs have had ample opportunity to probe
whether Mr. Thomas’s deposition testimony was improperly influenced
by Marvel.

(Thomas Dep. at 86, 101-12, 120-28, 131, 133, 140-54,

160-62, 192-96). The expense and burden of a reconvened deposition
are not justified by the very limited nature of the information
regarding Mr. Thomas’s communications with Marvel’s counsel that
plaintiffs might properly discover.
Conclusion
For the reasons set forth above, the plaintiffs’ motion for an
order reconvening the deposition of Roy Thomas at the defendant’s
expense is denied.

15

SO ORDERED.

rN~C. e'~~_7r

JAMES
FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
May 20, 2011

Copies mailed this date to:

Leonard F.Lesser, Esq.

Simon-Lesser PC

420 Lexington Avenue

New York, New York 10170

Charles S. Kramer, Esq.

Joseph D. Schneider, Esq.

Daniel Bloom, Esq.

Nelson L. Mitten, Esq.

Riezman Berger P.C.

7700 Bonhomme Avenue

7th Floor

St. Louis, IL 63105

Dawn K. O'Leary, Esq.

Eric W. Evans, Esq.

Roth, Evans & Landing

2421 Corporate Centre Drive, Suite 200

Granite City, IL 62040

David Fleischer, Esq.

Sara Jacobson, Esq.

Haynes and Boone, LLP

30 Rockefeller Plaza, 26th Floor

New York, New York 10112

Jodi A. Kleinick, Esq.

Paul Hastings Janofsky & Walker LLP

75 East 55th Street

New York, New York 10022

16