Anwar et al v. Fairfield Greenwich Limited et al

Filing 1150

ENDORSED LETTER addressed to Magistrate Judge Frank Maas from Bradley P. Smith dated 6/10/2013 re: We write on behalf of the Standard Chartered Defendants ("Standard Chartered") to request a conference with the Court concerning expert discovery. ENDORSEMENT: The Court will hold a telephone conference on 6/14/13 at 3pm. If this date and time are not convenient, counsel should place a conference call to chambers by noon on 6/13 to reschedule., ( Telephone Conference set for 6/14/2013 at 03:00 PM before Magistrate Judge Frank Maas.) (Signed by Magistrate Judge Frank Maas on 6/10/2013) (lmb) (Additional attachment(s) added on 6/11/2013: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C) (lmb).

MEMO ENDORSED

SULLIVAN & CROMWELL LLP
TELEPHONE: [phone]

FACSIMILE: 1-212-558-3588

LOS ANGELES. PALO AL.TO

II

WASHINGTON, D.C

FRAN KFURT. LONDON. PARIS
BEIJIt-.G. HOf'.OG KOf'.OG -TOKYO

MELSOURNE. SYDNEY

.

: :\1
l
/'

13

June 10.2013

Bv Hand

~[CLJ'-

lclD\

The Honorable Frank Maas,
G-u l,-~ c v.- ~t'-C-<..-L L<:""- c",-,,--­
United States Magistrate Judge,
u!~y.
U ...X'\ ~ (\"."\ •

Daniel Patrick Moynihan United States Courthouse, & l \ l ~ .
.
I ~

500 Pearl Street,
-~-= dlL~ ~(....<..£A
Vl.A.....-.>........~

New York, New York 10007.
L - C ..,
C?
Caul.{.

O--JL...-

Re:

Dear Judge Maas:

0

LeO \.

V\

V

)

Anwar v. Fairfield Greemvich Ltd. ,slz.D v u:::l ~ lu......c..e.... LA-..... L. v- ~ l.9-........
No. 09-CV-118 (S.D.N.Y.)·· Standard Chartered Cases
c~; ~b (l~~

b ~ ~.,.o v.-. {C'V-.1 (
i

tvV

~

"'llll
J

(u /\'lZ.

U2::,lA.-l~

)

~ C (~....( d
~o

We write on behalf of the Standard Chartered Defendants ("'Standard Chartered")

to request a conference with the Court concerning expert discovery. In the wake of the rulings

by Your Honor and Judge Marrero regarding rebuttal expert reports, the Standard Chartered

Plaintiffs' Steering Committee (the "Steering Committee") served rebuttal reports on March 20,

2013, and Standard Chartered served a sur-rebuttal report on May 17. The last remaining

obstacle to expert depositions is the production of documents as part of expert discovery.

Unfortunately, plaintiffs have objected to producing any documents concerning their designated

experts, which prompts this request for relief.

On May 1, Standard Chartered served Rule 34 document requests on plaintiffs,

seeking documents concerning the opinions set out in the reports of their designated experts,

George Martin and Robert Picard. Plaintiffs have refused to produce anything but

simultaneously have sought discovery from Standard Chartered's experts that far exceeds the

limitations set out in Rule 26(a)(2)(B). In fairness, document discovery regarding the parties'

experts should not be a one-way process where plaintiffs produce nothing while seeking

burdensome discovery from Standard ChaIiered's experts. Standard Chartered thus asks that the

Court compel plaintiffs to produce documents responsive to Standard Chartered's expert

discovery requests, which seek documents relating to the six categories of expert-related

information discoverable under Rule 26(a)(2)(B).

A.

Standard Chartered's Requests for Production Seek Documents Within

Rule 26's Limited Scope of Expert Discovery.

Although document discovery relating to expert witnesses is more limited than

discovery from fact witnesses, Rule 26(a)(2)(B) requires the disclosure of six specific categories

of information pertaining to expert witnesses: (i) the expert report itself; (ii) "the facts or data

(

I

The Honorable Frank Maas

-2­

considered by the" expert; (iii) "any exhibits that will be used" by the expert; (iv) the expert's
"qualifications, including a list of ... publications authored in the previous 10 years"; (v) "a list
of ... other cases in which, during the previous 4 years, the [expert] testified" ; and (vi) a
statement regarding the expert's compensation in the case. See Rule 26(a)(2)(B)(i)-(vi).
Consistent with the above categories of information, Standard Chartered sought
the production of expert-related documents by serving Rule 34 document requests on the
Steering Committee, which is expressly authorized to accept service of discovery requests on
behalf of all plaintiffs. (Stipulation & Order Appointing Steering Committee (Dkt. No. 602)
at 3.) Standard Chartered's document requests seek documents, data, and factual information
]
concerning Messrs. Martin's and Picard's compensation, opinions and analyses, and
communications with plaintiffs, witnesses, and one another. (See Standard Chartered's Requests
for Prod. of Docs. Concerning PIs.' Experts, attached as Exs. A (Martin) and B (Picard).) The
requested information falls within the categories of documents required by Rule 26(a)(2)(B) and
thus is within the proper scope of expert discovery.
B.

Plaintiffs Have No Legitimate Basis for Their Refusal To Produce
Responsive Documents and Should be Compelled To Do So.

On May 16,2013, plaintiffs served a two-page response to Standard Chartered's
requests, a copy of which is attached as Exhibit C. Plaintiffs objected to producing anything on
the grounds that the requests (i) "were submitted after the end of the discovery period";
(ii) should have been made in the form of Rule 45 subpoenas, rather than Rule 34 document
requests; (iii) "were submitted in bad faith and with the purpose of delay and obfuscation"; and
(iv) "impose undue burdens on the Plaintiffs." These four objections can be easily addressed.
First, Standard Chartered's expert discovery requests were timely. They were
served shortly after the receipt of plaintiffs' rebuttal expert reports and before Standard
Chartered served its sur-rebuttal report on May 17. Had Standard Chartered served its expert
discovery requests during the fact discovery period-as plaintiffs contend should have been
done--plaintiffs undoubtedly, and rightly, would have objected that the requests were premature.
Under the scheduling order, the period for conducting expert depositions began on May 17 and
runSlliroJTIill AlIgnst.J5. (See-Second Am. Scneduhng Order, Feb. 4, 2011 CDkeNo. 609) ~12.)
Standard Chartered served its discovery requests before that period even began; they are timely.
Second, nothing requires the use of Rule 45 subpoenas to experts rather than
document requests pursuant to Rule 34. Rule 34(a)(1) states that "[a] party may serve on any
other party a request ... to produce ... items in the responding party's possession, custody or
control." That is what Standard Chartered did. Plaintiffs cannot seriously dispute their ability to
obtain from their experts the documents called for by Standard Chartered's document requests.
Rather than serving Rule 34 document requests, plaintiffs elected to serve Rule 45 subpoenas,
and Standard Chartered's counsel agreed to accept service of those subpoenas. But that
agreement does not mean that Rule 45 is the sole mechanism for obtaining expert discovery. I In
In fact, at least one court in this District has held that "routine use of subpoenas directed
to a party's expert is inappropriate." Pope v. City ofNew York, No. 10-CV-4118, 2012 WL
555997, at *1 (S.D.N.Y. Feb. 10,2012).

-3­

The Honorable Frank Maas

any event, plaintiffs' demand that Standard Chartered serve Rule 45 subpoenas is disingenuous.
In an effort to avoid involving the Court, Standard Chartered inquired whether plaintiffs would
be willing to either deem Standard Chartered's Rule 34 requests to be subpoenas or would
respond if Standard Chartered served subpoenas seeking the same information. Plaintiffs did not
respond, making clear that they will produce nothing unless this Court compels them to do so.
Third, plaintiffs have no basis to assert that Standard Chartered's expert discovery
requests amount to "bad faith" or seek "delay and obfuscation." To the contrary, the requests
seek narrow categories of information clearly contemplated under Rule 26.
Finally, the requests impose no "undue burdens" on plaintiffs. Plaintiffs have no
legitimate basis for making such a claim because all the requested documents are within the
proper scope of expert discovery. Plaintiffs also cannot claim it is burdensome to produce the
categories of documents required by Rule 26(a)(2)(B), while at the same time demanding that
Standard Chartered's experts produce detailed accounts of their professional histories, their
classroom handouts, and all comments or documents tangentially related to Bernard MadotT
To avoid unnecessary disputes, the parties to the underlying action in Anwar v.
Fairfield Greenwich Ltd. stipulated, and this Court ordered, that expert document discovery in
that litigation shall consist of (i) final expert reports; (ii) facts or data, or documents identified in
the report that the expert relied on in forming his opinions; (iii) assumptions that were provided
to the expert and relied upon in forming his opinions; (iv) communications between experts
"concerning matters addressed in the reports"; and (v) the experts' engagement letters and
compensation agreements. (StipUlation Concerning Expert Discovery (Dkt. No. 1115) (the
"Expert Discovery Stipulation") ~ 1.) Standard Chartered's expert discovery requests to
plaintiffs are consistent with these categories. 2 Standard Chartered thus respectfully requests that
the Court compel plaintiffs to promptly produce all documents called tor by Standard
Chartered's discovery requests.
Respectfully submitted,

&dJ-;u~
Bradley P. Smith

(Attachments)
cc:

Standard Chartered Plaintiffs' Steering Committee (via E-mail)

2

The Expert Discovery Stipulation limits discovery to information "relied upon by the

expert in forming an opinion." (Expert Discovery Stipulation ~ 1.) Standard Chartered's
requests seek, consistent with Rule 26(a)(2)(B), information "considered by" the expert in
forming an opinion. Standard Chartered's requests also do not so narrowly limit discovery of
communications to only those between experts. (Expert Discovery Stipulation ~ 1(e); see Ex. A,
Request Nos. 20-22,24-26; Ex. B, Request Nos. 6-8, 10-12.) If plaintiffs would agree, however,
Standard Chartered is amenable to limiting all expert discovery from both sides to the caTegoms
of documents set forth in paragraph~ one of the Expert Discovery ~Stlpulati()n.
---,----------------~.~--.-

..

..

-----"----.~-- ~.-."

.. -

~.-.~.-- --~

..­