Anwar et al v. Fairfield Greenwich Limited et al

Filing 830

ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Diane L. McGimsey dated 2/27/2012 re: I write on behalf of the Standard Chartered Defendants ("Standard Chartered") in the above-captioned action, to request that the Court enter a protective order barring plaintiffs from proceeding with a deposition of Richard Holmes, the former President, Chairman and Chief Executive Officer of American Express Bank Limited ("AEBL"), and currently the Chief Executive Officer, UK and Europe, Standard Chartered Bank. ENDORSEMENT: Defendants' application for a protective order is granted. The deposition of Mr. Holmes, the former CEO of American Express Bank Ltd., has not been shown to be justified as this time. There is no need to depose every person present at a meeting. This Order is without prejudice to plaintiffs renewing their deposition notice should the other deponents have insufficient knowledge. (Signed by Magistrate Judge Theodore H. Katz on 3/7/2012) (lmb)

SULLNAN & CROMWELL LLP

NEW YORK. PALO ALTO. WASHiNGTON, D,C.
FRANKFURT' LONDON' PARIS

BEIJING' HONG KONG' TOKYO
MEUJOURNE,SYDNEY

Fepruary 27,2012

By Hand
Honorable Theodore H. Katz,
United States Magistrate Judge,
Daniel Patrick Moynihan U.S. Courthouse,
500 Pearl Street,
New York, New York 10007.
Re:

Anwar v. Fairfield Greenwich Limited, 09-CV -118 ­
Standard Chartered Cases

Your Honor:
I write on behalf of the Standard Chartered Defejndants ("Standard
Chartered") in the above-captioned action, to request that the ~urt enter a protective
order barring plaintiffs from proceeding with a deposition of Rkbard Holmes, the former
President, Chairman and Chief Executive Officer of American ~xpress Bank Limited
("AEBL"), and currently the Chief Executive Officer, UK and ~urope, Standard
Chartered Bank.
:
During the January 27, 2012 discovery conferenfe, Your Honor denied
plaintiffs' request that Standard Chartered be required to searchjMr. Holmes's files for
documents that might be responsive to plaintiffs' discovery req~ests. (Jan. 27,2012
Hearing Tr. at 71-72.) Demonstrating a tin ear, plaintiffs notict¥l the deposition of
Mr. Holmes just two days later.
The Court should bar the noticed deposition for tjhe same reason it did not
require Standard Chartered to search Mr. Holmes's files. The f.ctual record in this case
does not suggest that Mr. Holmes has any unique or superior knpwledge of any issues of
relevance in this lawsuit. Even if he did have such knowledge, laintiffs' attempt to
depose him without making any attempt to obtain the same discbvery through less
intrusive methods is improper. See Consolidated Rail Corp. v. frimary Indus. Corp.,
1993 U.S. Dis!. LEXIS 12600, at *3 (S.D.N.Y. Sept. 10, 1993) {:ourts generally will not
require deposition of senior executives "until it has been demo~trated that they have
p.

Honorable Theodore H. Katz,

-2­

some unique knowledge pertinent to the issues" and less intrusive means of discovery
have been exhausted).
Here, plaintiffs cannot cite any evidence indicating that Mr. Holmes has
unique knowledge about the issues in this litigation. As the top executive of AEBL, a
large international bank with many lines of business, he was not involved in the due
diligence that was conducted on Fairfield Sentry Limited or the sales of that fund to
plaintiffs. None of the tens of thousands of documents produccpd in this litigation
indicates that Mr. Holmes had any involvement in, or knowled~~ of, the events alleged in
these cases, other than his attendance at a 2003 Product Approtal Committee ("PAC")
meeting at which Fairfield Sentry was discussed. There is no ijJ.dication that Mr. Holmes
has any unique knowledge about that meeting that would justify his deposition. See
Treppel v. Biovail Corp., 2006 WL 468314, at *2-3 (S.D.N.Y. 20(6) (granting protective
order of corporate executive where "another source could provide identical
information"). Plaintiffs also cannot dispute that there are lessiburdensome ways of
obtaining discovery about the 2003 PAC meeting: they have d¢posed or are scheduled to
depose five other attendees of that meeting.
In short, "plaintiffs have failed to demonstrate a: need for Mr. [Holmes]'s
testimony, and the likelihood of harassment is significant." Lin v. Benihana Nat'l Corp.,
2010 U.S. Dist. LEXIS 107839, at *6-7 (S.D.N.Y. Oct. 5, 201Q). Standard Chartered
therefore respectfully requests that the Court enter a protectivelOl'der barring
Mr. Holmes's deposition.
.