Anwar et al v. Fairfield Greenwich Limited et al

Filing 759

ENDORSED LETTER addressed to Magistrate Judge Theodore H Katz from Bradley P Smith dated 11/17/2011 re: Confirmation of the Court's 10/31/2011 rulings concerning the 8 depositions that plaintiffs have noticed. ENDORSEMENT: The Court expects that class discovery will be coordinated with general discovery, and, in doing so, all efforts should be made to avoid the recall of deponents. As the Court ruled previously there will will be a preemption against recalling deponents. (Signed by Magistrate Judge Theodore H. Katz on 12/5/2011) (cd)

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November 17,2011

By Hand

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The Honorable Theodore H. Katz,
United States Magistrate J u d g e , .
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Daniel Patrick Moynihan United States Court ous~, • ;J
500 Pearl Street,

New York, New York 10007-1312.

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Re:

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Anwar v. Fairfield Greenwich Limited,
No. 09-CV-118 (VM) - Standard Chartered Cases

Dear Judge Katz:
We write on behalf of the Standard Chartered Defendants ("Standard
Chartered")! to seek confirmation of the Court's October 31, 2011 rulings concerning the
eight depositions that plaintiffs have noticed in this litigation.
During the October 31 discovery conference, the Court ruled that plaintiffs
could proceed with depositions beginning next Monday, November 21, even though the
parties are still in the midst of document production. In allowing depositions to proceed
now, however, the Court made clear that "it falls on [plaintiffs] to stick to [their]
commitment that this is primarily about due diligence because there are other subjects [of
possible testimony] and it's acknowledged that there is yet to be a complete production of
[documents on] those subjects." (Oct 31, 2011 Hearing Tr. at 25:3-7_) Your Honor
emphasized that "[t]he witnesses can feel comfortable that they're not going to be asked
to do this a second time, and again, there's a presumption here against doing the
deposition a second time." (ld. at 25: 15-18.)
On October 31, the Court also appointed Gaytri Kachroo who filed a
putative class action against Standard Chartered on December 9,2010 - as an additional
member of the plaintiffs' Steering Committee. Now so appointed, Ms. Kachroo seeks to
undermine the Court's October 31 rulings by asking witnesses to be deposed a second
time. Depositions are currently scheduled for November 21 and 22. After 5 p.m. this
past Tuesday, November 15, however, Ms. Kachroo informed Standard Chartered that
"Standard Chartered Defendants" refers to Standard Chartered Bank and
all of its affiliates that are named as defendants in the Standard Chartered Cases.

The Honorable Theodore H. Katz

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although she "expect[ s] to participate in the depositions coming up," plaintiffs wish to
"reserve [their] rights to depose any witnesses relevant to class discovery" at a later date.
Standard Chartered immediately reminded counsel of this Court's rulings and objected to
plaintiffs' purported reservation of a right to bring a witness back for testimony on
additional topics. In response, Ms. Kachroo reiterated yesterday evening that plaintiffs
believe they have the "right to call (and if necessary, recall) any witness for deposition in
connection with class discovery" - including those witnesses scheduled to be deposed
next week.
Plaintiffs' position is wholly inconsistent with this Court's October 31
ruling that bringing witnesses back for a second deposition on subjects as to which
document production is not yet complete is "not going to happen." (Oct. 31,2011
Hearing Tr. at 25:8.) Moreover, it is contrary to the obligations placed upon members of
the Steering Committee to conduct "all discovery on behalf of all plaintiffs in the
Standard Chartered Cases" and to do so "in a coordinated manner on behalf and for the
benefit of the Standard Chartered Plaintiffs." (Feb. 4, 2011 Order Appointing Steering
Committee (Docket No. 602) at 3.)2 The Steering Committee must ensure that discovery
is conducted in a coordinated fashion that inures to the benefit of all plaintiffs, including
putative class plaintiffs. The fact that individual members of the Steering Committee are
insisting that they have the right to recall witnesses for a second day of testimony on
additional subjects demonstrates a clear lack of coordination.
Plaintiffs apparently believe they can pursue uncoordinated discovery to
the extent that it relates to "class issues." Nothing in this Court's prior orders authorizes
such an approach. To be sure, during the October 13 discovery conference before Your
Honor, the Court inquired whether "there [is] a schedule for ... class certification," and
directed the parties to meet and confer to establish one. (Oct. 13,2011 Hearing Tr.
at 42:8-9.) But neither the timing of class certification briefing - nor the fact that the
parties may undertake discovery in connection with such briefing - excuses the Steering
Committee from its obligation to ensure that all discovery in this litigation is coordinated
and efficient.
Plaintiffs are in no position to complain that they are not yet ready to
proceed with deposition testimony on the subject of class certification. The putative class
action was filed more than two months before the Steering Committee propounded its
first discovery requests. The Steering Committee was unquestionably aware ofthe class
action when it chose which discovery requests to propound; and it has elected to move
forward with certain depositions immediately, despite Standard Chartered's objections
and with full knowledge that document discovery remains ongoing. Standard Chartered
is not responsible for the fact that the Steering Committee apparently did not propound
the discovery requests that Ms. Kachroo believes she needs. Standard Chartered equally
2

See also Feb. 4, 2011 Second Amended Scheduling Order (Docket
No. 602) ~ 4 ("The Steering Committee shall coordinate discovery on behalf of all
plaintiffs in the Standard Chartered Cases.")

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The Honorable Theodore H. Katz

is not responsible for the fact that Ms. Kachroo took no steps to proceed with class
certification motion practice until she was directed to meet and confer with Standard
Chartered on October 13, more than ten months after the putative class complaint was
filed.
Standard Chartered does not ask that the Court postpone the depositions
scheduled for November 21 and 22. Rather, Standard Chartered seeks to ensure that the
parties proceed with a common understanding to avoid unnecessary future disputes. We
therefore respectfully request that the Court expressly confirm that its prior rulings apply
to all plaintiffs, including the putative class, and that plaintiffs may not seek to depose
any witness a second time on any subject (including class-related issues) as to which
there is yet to be a complete production of documents.
Respectfully submitted,

cc:

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Plaintiffs' Steering Committee
(bye-mail attachment)

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so ORDERED ~

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II

THEODORE H. KATZ

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UNlTEDSTATES MAG1STRATE JUDGE