Abu Dhabi Commercial Bank et al v. Morgan Stanley & Co. Incorporated et al

Filing 316

ORDER ON REPORT AND RECOMMENDATION NO. 17 PLAINTIFF'S MOTION TO RESUME THE DEPOSITION OF WARREN KORNFELD for 312 Report and Recommendation: The Court hereby adopts Report and Recommendation No. 17. Plaintiffs' Motion to Resume Mr. Kornfeld's deposition is hereby DENIED without prejudice, as further set forth on this Order. (Signed by Judge Shira A. Scheindlin on 9/29/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ORDER ON
REPORT AND RECOMMENDATION
NO. 17

PLAINTIFFS' MOTION TO

RESUlvfE THE DEPOSITION

OF WARREN KORNFELD

ABC DHABI CO:MMERCIAL BANK,
KING COUNTY, WASHINGTON
Together and On Behalf of All Others
Similarly Situated,
Plaintiffs,
v.

Case No. 08

Civ. 7508 (SAS)

MORGAN STANLEY & CO.
INCORPORATED, MORGAN
STANLEY & CO. INTERNATIONAL
PLC, MOODY'S INVESTORS
SERVICE, INC., MOODY'S
INVESTORS SERVICE LTD.,
STANDARD AND POOR'S RATINGS
SERVICES and THE McGRAW HILL
COMPANIES, INC.,

SHIR,\ A. SCHEINDLIN, UNITED STATES DISTRlCT JUDGE:

The Court, having reviewed Report & Recommendation No. 17 of the Special Master
(Docket No.

31 2 ), and having received no objections from the Parties, hereby adopts Report

and Recommendation No. 17, and further ORDERS:
1. Plaintiffs' Motion to Resume 1v1r. Kornfeld's deposition is hereby DENIED without
prejudice.
2. If Defendants list Mr. Kornfeld as a trial witness, Plaintiffs will be permitted

to

reopen

IvIr. Kornfeld's deposition for no more than three and one-half hours of examination

time by Plaintiffs.
3. If Mr. Kornfeld's deposition is reopened, Plaintiffs should avoid retreading ground that
was addressed in Mr. Kornfeld's June 28-29, 2011 deposition. However, to the extent

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Plaintiffs \\';sh to ask questions related to exhibits that were used during or shown to Mr.
Kornfeld in his June 28-29, 2011 deposition, Plaintiffs are not prohibited from doing so.
4. The Parties and their counsel are hereby reminded of (1) what conduct, objections and
instructions are appropriate at depositions (for both examining and defending counsel),
(2) the fact that two-day fact witness depositions should be considered to be the
exception in this case, and (3) the Parties previously have been instructed to not "waste
time" in the limited number of depositions that remain in this case.
5. In particular, all Parties must heed the Court's May 2011 admonition for the Parties to
attempt to complete fact witness depositions in a single day.
6. In addition, the Parties are hereby directed to comply \v'ith the guidance sent forth in the
Court's Suggested Rules of Discovery Practice ~'14-6.
7. Further, the Parties are hereby reminded that coaching a witness is strictly prohibited and
that, when making an objection, counsel shall state the permissible basis(es) of the
objection, such as (1) compound; (2) asked and answered; (3) overbroad/calls for a
narrative; (4) calls for speculation; (5) argumentative; (6) vague or unintelligible;
(7) assumes facts not in evidence; (8) misstates the record; (9) calls for an opinion from
an unqualified witness; (10) leading where not permitted; and (11) lack of foundation,
and no more.
8. Finally, the Parties are instructed to contact the Special Master in the event disputes
similar to those that occurred during Afr. Kornfeld's deposition arise in future
depositions. If the Parties stray from the direction set forth above or otherwise reach an
impasse during a deposition, the Parties should contact the Special Master to address
such disputes. The Special Master may recommend adjourning a deposition to allow a
Party to meaningfully submit a Motion for Protective Order, or otherwise provide
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direction to the Parties to allow a deposition to resume and continue in a civil, decent
and efficient manner.

Shira A. Scheindlin
United States District Judge

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