Samad Brothers, Inc. v. Bokara Rug Co. Inc
Filing
141
OPINION AND ORDER: For the foregoing reasons, Defendants' motion in limine topreclude Kapoor's deposition testimony is denied. Additionally, while the errata sheet submitted by Plaintiff does not satisfy the requirements of Rule 902(3), the Court makes no ruling at this time regarding its preclusion or admissibility. (Signed by Judge John F. Keenan on 1/9/2012) (rdz)
Case 1:09-md-02013-PAC Document 57
Filed 09/30/10 Page 1 of 45
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED:
01/09/2012
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------- X
SAMAD BROTHERS, INC.,
:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK :
Plaintiff,
:
-----------------------------------------------------------x
: :
No. 09 Civ. 5843 (PAC) (KNF)
In re FANNIE MAE 2008 SECURITIES
08 Civ. 7831 (JFK)
-against: :
LITIGATION
09 MD 2013 (PAC)
: :
OPINION
BOKARA RUG CO., INC., JAN
: :
AND ORDER
OPINION & ORDER
SOLEIMANI, and GABRIEL VAKNIN,
:
-----------------------------------------------------------x
:
Defendants.
:
---------------------------------- X
HONORABLE PAUL A. CROTTY, United States District Judge:
APPEARANCES
For Plaintiff Samad Brothers, Inc.: 1
BACKGROUND
KAUFMAN & KAHN, LLP
By:
The earlyMark of this decade saw a boom in home financing which was fueled, among
years S. Kaufman
For Defendants Bokara Rug Co., Inc., Jan Soleimani, and
other things, by low interest rates and lax credit conditions. New lending instruments, such as
Gabriel Vaknin:
WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
By: Jura C. Zibas, Esq
Scott M. Smedresman, Esq.
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
assumption that the market would continue to rise and that refinancing options would always be
JOHN F. KEENAN, United States District Judge:
available in the future. Lending discipline was lacking in the system. Mortgage originators did
Before the Court is Bokara Rug Co., Inc., Jan Soleimani,
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
and Gabriel Vaknin’s (collectively, “Defendants”) motion in
originators sold their loans into the secondary mortgage market, often as securitized packages
limine to preclude Samad Brothers, Inc. (“Plaintiff”) from
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
relying upon the deposition testimony of non-party witness
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
Vikram Kapoor (“Kapoor”), in the event that Kapoor is
and home prices began to fall. In light of the changing housing market, banks modified their
unavailable to testify at trial. Defendants also move to
lending practices and sheet submitted by Kapoor in connection with
preclude an errata became unwilling to refinance home mortgages without refinancing.
his deposition.
1
For the reasons that follow, Defendants’
Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
motions June 22, denied.
dated are 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.
1
I.
Background
The Court presumes familiarity with the facts and
procedural history of this case.
Briefly, Samad Brothers is in
the business of importing and selling rugs.
In its Third
Amended Complaint, Samad Brothers alleges that Defendants have
infringed twenty-five copyrighted rug designs that S.N. Kapoor
Exports and Jain Carpets created and later assigned to Samad
Brothers.
Kapoor is a non-party witness who lives in India.
He
designed twenty-three of the twenty-five rug designs at issue in
this action, and his relationship with Plaintiff and Defendants
has been a contentious issue throughout the litigation.
The Court’s December 13, 2010, Memorandum Opinion and Order
in this case is of particular relevance to Defendants’ instant
motion. See Samad Brothers, Inc. v. Bokara Rug Co., Inc., No. 09
Civ. 5843, 2010 WL 5095356 (S.D.N.Y. Dec. 13, 2010).
In that
Memorandum Opinion and Order, the Court sustained Defendants’
objection to the Magistrate Judge’s ruling that certain e-mails
between Plaintiff’s counsel, Mr. Kaufman, and Kapoor, a nonparty witness, were protected under the work-product doctrine.
The Court ordered Mr. Kaufman to produce his e-mail
communications with Kapoor.
Based in part upon those e-mails,
Defendants move for the preclusion of Kapoor’s deposition
testimony.
-2-
Since April 2010, both parties have sought documents and
information from Kapoor.
On April 5, 2010, Defendants served
Kapoor with their first subpoena for documents through
acceptance by Mr. Kaufman.
Almost in their entirety, the
e-mails between Mr. Kaufman and Kapoor concerned documents that
were responsive to Defendants’ subpoena.
Mr. Kaufman objected
to the production of these documents on the ground that they
were attorney work-product, and on July 29, 2010, the Magistrate
Judge sustained Plaintiff’s objection.
Fourteen days later, the
Defendants filed an objection to the Magistrate Judge’s Order
dated July 29, 2010.
On November 9, 2010, while Defendants’ objection was
pending, Defendants’ counsel, Ms. Jura Zibas, e-mailed Mr.
Kaufman to inform him that Defendants wished to proceed with the
scheduled deposition of Kapoor despite Kapoor’s failure to
produce requested documents. (Kaufman Decl. Opp. Mot. to
Preclude Ex. A, ECF No. 129.)
Accordingly, Defendants deposed Kapoor on November 23,
2010.
Kapoor traveled voluntarily, at his own expense, from
India to New York City for this deposition, which took place in
three sessions and lasted for most of the day.
First, Ms. Zibas
questioned Kapoor for approximately five hours.
Thereafter, Mr.
Kaufman examined Kapoor for about two and one-half hours.
Zibas then re-examined Kapoor for another half-hour before
-3-
Ms.
ending the deposition.
At approximately 3:15 pm, after the
conclusion of the first round of questions, Defendants served
Kapoor with a summons and complaint for an action initiated by
Defendants against Kapoor in the Supreme Court of the State of
New York, New York County.
That action concerns principally the
same events as this case. See Bokara Rug Co. Inc. v. Kapoor,
Index. No. 652079/2010 (N.Y. Sup. Ct. Aug. 9, 2011) (order
granting in part and denying in part defendant’s motion for
summary judgment).
After the completion of the deposition, Kapoor submitted an
errata sheet pursuant to Rule 30(e)(1) of the Federal Rules of
Civil Procedure.
On each page of the errata sheet, there are
two different stamps in red ink.
The first is a circular stamp
that reads, “NOTARY-GOVERNMENT OF INDIA, B.L. JAIN, JAIPUR,
Regd. No 550.”
The second stamp, which is accompanied by an
illegible signature, reads, “ATTESTED, NOTARY PUBLIC, Govt. of
India, JAIPUR (RAJ), 19 JAN 2011.”
Adjacent to the signature
accompanying the second stamp is a handwritten date, “19-1-11.”
Finally, each page bears a signature alleged by Plaintiff to be
Kapoor’s.
II.
A.
Discussion
Kapoor’s Deposition Testimony
Defendants first argue that the Court should preclude
Plaintiff from introducing Kapoor’s deposition testimony as a
-4-
sanction for the conduct of Plaintiff’s counsel and pursuant to
Rule 403 of the Federal Rules of Evidence. 1
1.
Exclusion Under the Court’s Inherent Power to Manage
the Integrity of the Judicial Process
Rule 32 of the Federal Rules of Civil Procedure governs the
use of deposition testimony at trial.
A party may use for any
purpose the deposition testimony of a witness, including a nonparty, if the court finds that he is unavailable. See Fed. R.
Civ. P. 32(a)(4).
A witness is “unavailable” when the party
offering the deposition could not procure the witness's
attendance by subpoena, or when the witness is more than 100
miles from the place of hearing or trial or is outside the
United States, unless it appears that the witness’s absence was
procured by the party offering the deposition. Fed. R. Civ. P.
32(a)(4)(B)-(D).
Citing Chambers v. NASCO, Inc., 501 U.S. 32 (1991),
Defendants argue that the Court can preclude the use of
deposition testimony at trial under its inherent power to manage
the integrity of the judicial process.
1
“It has long been
In their initial papers, Defendants request in the alternative
that “the Court order that an additional deposition of Kapoor
take place,” and to order the preclusion of the original
testimony should he fail to appear. (Defs.’ Mem. Supp. 1.)
However, Defendants abandon this position in their reply papers:
“Contrary to Samad’s suggestion, Bokara does not request that
this Court order Kapoor to appear. Instead, Bokara asks that if
Kapoor does not voluntarily appear, that this Court order that
his testimony be precluded.” (Defs.’ Reply Mem. Sup. 10 n.4.)
-5-
understood that ‘[c]ertain implied powers must necessarily
result to our Courts of justice from the nature of their
institution,’ powers ‘which cannot be dispensed with in a Court,
because they are necessary to the exercise of all others.’” Id.
at 43 (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32,
33 (1812)).
The Court’s inherent power even allows the Court to
vacate its own judgments upon proof that a fraud has been
perpetrated on the Court. Chambers, 501 U.S. at 44.
It is a
significant equitable power given to federal courts, and
necessary at times to protect and safeguard the judiciary and
the public in serious cases of abuse. See id.
Yet due to its
potency, this inherent power “must be exercised with restraint
and discretion.” Id.
Therefore, whenever “a district court
invokes its inherent power to impose attorney’s fees or to
punish behavior by an attorney in the actions that led to the
lawsuit or conduct of the litigation, which actions are taken on
behalf of a client, the district court must make an explicit
finding of bad faith.” Kyoei Fire & Marine Ins. Co., Ltd. v. M/V
Maritime Antalya, 248 F.R.D. 126, 143 (S.D.N.Y. 2007)
(quotations omitted).
Plaintiff and Defendants agree that it is likely that
Kapoor will be unavailable for trial.
continues to reside in India.
He is a non-party and he
Furthermore, according to
Plaintiff, Kapoor does not intend to return to New York. (Decl.
-6-
of Vikram Kapoor (“Kapoor Decl.”) ¶ 25, March 24, 2011, ECF No.
133.)
Therefore, under Rule 32(a)(4), Kapoor’s deposition
testimony will likely be admissible at trial under the Federal
Rules of Evidence and the Federal Rules of Civil Procedure.
As
such, in urging this Court to preclude the deposition testimony
under the Court’s inherent powers, Defendants do not challenge
its prima facie admissibility, but rather seek its preclusion as
a sanction for alleged misconduct by Mr. Kaufman.
The Court
disagrees that preclusion is warranted in this case under the
Court’s inherent powers.
Defendants make serious allegations concerning Mr.
Kaufman’s conduct, including, inter alia, improper contact with
a non-party witness and witness coaching.
As a result,
Defendants allege that Mr. Kaufman’s conduct “tainted” the
deposition and that the testimony should be barred at trial as a
result of this “taint.”
In support of their accusations of
misconduct, Defendants allege that Mr. Kaufman provided
transcripts of previous depositions in the case to Kapoor and
met with Kapoor on the day before the deposition to show him
documents relevant to this case.
These general allegations are not enough to show misconduct
warranting the Court’s exercise of its inherent powers to
exclude the deposition testimony.
First, the deposition
transcripts provided to Kapoor were not subject to a protective
-7-
order to prevent their disclosure.
Second, it is not improper
for an attorney to contact a non-party witness. Cf. Matusick v.
Erie Cnty. Water Auth., No. 07 Civ. 489A, 2010 WL 681062, at *3
(W.D.N.Y. Feb. 22, 2010) (Scott, Mag. J.) (finding that nonparties did not need permission to meet with plaintiff’s
counsel); Sforza v. City of New York, No. 07 Civ. 6122, 2008 WL
4701313, at *1 (S.D.N.Y. Oct. 24, 2008) (holding that the
ordinary rule in federal question cases is that counsel may
interview non-party lay witnesses); Polin v. Kellwood Co., 132
F. Supp. 2d 126, 136 (S.D.N.Y. 2000) (“There was no prohibition
against [the defendant’s counsel] contacting a non-party, nonexpert potential witness in order to prepare for the
hearings.”).
Mr. Kaufman was neither prohibited from contacting
Kapoor, nor from discussing the case with him.
In support of their argument that Mr. Kaufman acted
improperly, Defendants provide citations to very few cases and
the cases that they do cite are inapposite.
Further, Defendants
rely upon case law almost entirely from courts outside of the
Second Circuit.
Defendants frequently cite Ty Inc. v.
Softbelly's, Inc., 517 F.3d 494, 498 (7th Cir. 2008), Garvais v.
Reliant Inventory Solutions Inc., No. 09 Civ. 0389, 2010 WL
4722260, at *3 (S.D. Ohio Nov. 15, 2010), and Ramsey v. Broy,
No. 08 Civ. 0290, 2010 WL 1251199, at *4 (S.D. Ill. Mar. 24,
-8-
2010).
None of these decisions are binding authority on this
Court and they are all factually distinguishable.
The facts in Ty Inc. are different from the case at bar.
In that case, after an evidentiary hearing held by the district
court, the United States Court of Appeals for the Seventh
Circuit concluded that the plaintiff’s attorney had called a
witness and intimidated him into not testifying, and then lied
about the conversation in court, while under oath. 517 F.3d at
497-98.
In Garvais, the United States District Court for the
Southern District of Ohio held that “an attorney acts wholly
within his or her ethical boundaries by attempting to
communicate with a potential third-party witness.” 2010 WL
4722260, at *5.
It is only when the attorney attempts to
“interfere with, intimidate, or tamper with a potential witness”
that it is sanctionable misconduct. Id. at *3.
According to the
Southern District of Ohio, the defendant failed to show that the
plaintiff had attempted to prevent a non-party from providing
testimony.
Indeed, the Southern District of Ohio determined
that the plaintiff’s counsel properly contacted the non-party to
investigate defendants’ filing of an unsigned declaration for
the non-party witness.
In Ramsey, the plaintiff attempted to bribe his neighbors
into providing false testimony, and directly violated the
-9-
court’s order not to contact the non-parties.
That conduct was
proven after an evidentiary hearing, and the United States
District Court for the Southern District of Illinois held that
such conduct warranted the severe sanction of dismissal.
When
citing Ramsey, Defendants write “[a]lthough perhaps not
involving an outright bribe to Kapoor . . . the above conduct is
similar insofar as efforts were undertaken to have Kapoor
present evidence to match Samad’s own records.”
Ramsey are not similar to this case.
The facts of
The plaintiff in Ramsey
made bribes to the witnesses testifying at trial, which
constituted a federal crime.
The record here does not
demonstrate such egregious conduct.
Exclusion of the deposition testimony under the Court’s
inherent powers to preclude evidence is unwarranted because the
record does not support a finding of bad faith in connection
with Mr. Kaufman’s conduct. See Kyoei Fire & Marine Ins., 248
F.R.D. at 143 (quoting United States v. Seltzer, 227 F.3d 36, 41
(2d Cir. 2000)).
Defendants move in limine to preclude
testimony at trial, but focus much of their argument on whether
Mr. Kaufman engaged in sanctionable conduct.
Defendants argue
that Mr. Kaufman violated Rule 4.3 of the New York Rule of
Professional Conduct, which governs communications with
unrepresented parties. (See Defs.’ Mem. Supp. 10.)
Even
assuming for the sake of argument that Mr. Kaufman violated Rule
-10-
4.3, preclusion of Kapoor’s testimony is not warranted as a
result because Rule 4.3 is intended to protect unrepresented
individuals. N.Y. R. of Prof’l Conduct 4.3 cmt. 2 (where an
attorney’s interests may be adverse to an unrepresented person,
“the possibility that the lawyer will compromise the
unrepresented person’s interests is so great that the Rule
prohibits the giving of any advice apart from the advice to
obtain counsel”).
Defendants have not shown that excluding the
evidence in question would protect Kapoor’s rights.
The proper purpose of an in limine motion is not to accuse
opposing counsel of engaging in sanctionable conduct, but “to
aid the trial process by enabling the Court to rule in advance
of trial on the relevance of certain forecasted evidence, as to
issues that are definitely set for trial, without lengthy
argument at, or interruption of, the trial.” Palmieri v.
Defaria, 88 F.3d 136, 141 (2d Cir. 1996) (quotations omitted).
Therefore, the Court focuses on the narrow issue of whether
Kapoor’s deposition should be disallowed on the grounds set
forth in Defendants’ motion.
Defendants additionally argue that the deposition testimony
should be precluded because Mr. Kaufman assisted Kapoor in
responding to Defendants’ discovery requests, and because
e-mails indicating this assistance were unavailable at Kapoor’s
deposition.
Defendants rely upon the emails that were the
-11-
subject of the Court’s earlier ruling. See generally Samad
Bros., Inc. v. Bokara Rug Co., Inc., No. 09 Civ. 5843, 2010 WL
5095356 (S.D.N.Y. Dec. 13, 2010).
In that Memorandum Opinion
and Order, the Court concluded that the communications between
Mr. Kaufman and Kapoor did not reflect “mental impressions” that
were privileged under the attorney work product doctrine.
As
such, after reviewing the emails, the Court ordered them
produced to Defendants.
Defendants now have access to these
documents and communications.
Defendants assert that the
deposition is incomplete because they did not have access to
these documents at the time.
The Court does not agree with Defendant’s arguments.
Defendants decided to move forward with the deposition, fully
aware that these emails and documents existed and were the
subject of a pending motion.
Defendants did not write to the
Court to request an extension of the discovery deadline in order
to take the deposition after the motion was resolved.
Rather,
on the same day as Kapoor’s deposition, Defendants requested
that the discovery deadline be extended for expert discovery
purposes.
Also, as noted above, Defendants spent an entire day
deposing Kapoor.
The Court will not preclude Kapoor’s testimony
merely because he did not provide Defendants with the testimony
they expected or desired.
-12-
The Court will not, at this time, wade into the murky
waters surrounding whether Mr. Kaufman’s conduct is
sanctionable.
Defendants’ instant application is limited to the
request to preclude Kapoor’s deposition testimony.
Preclusion
of evidence is a drastic remedy. See Update Art, Inc. v. Modiin
Pub., Ltd., 843 F.2d 67, 71 (2d Cir. 1988) (“The harshest
sanctions available are preclusion of evidence and dismissal of
the action.”); accord Passlogix, Inc. v. 2FA Tech., LLC, 708 F.
Supp. 2d 378, 421 (S.D.N.Y. 2010) (“Preclusion is a harsh
sanction preserved for exceptional cases where a . . . party's
failure to provide the requested discovery results in prejudice
to the requesting party.” (internal quotation omitted)).
Because the circumstances presented do not warrant this drastic
remedy, Defendants’ application is denied.
2.
Exclusion Under Rule 403
Additionally, Defendants argue that the deposition should
be precluded under Rule 403 of the Federal Rules of Evidence.
Rule 403 provides that “[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.”
There is little doubt that the probative value of Kapoor’s
deposition testimony outweighs any prejudice here.
-13-
Kapoor is an
important figure in the events underlying this case.
Both
Plaintiff and Defendants were his clients, and he is the
designer of the majority of the rugs at issue.
His deposition
is relevant to and probative of the issues in the case.
Defendants deposed Kapoor for an entire day.
To the extent that
they allege that Kapoor is not credible, that is an issue to be
resolved by a jury.
Defendants’ argument that they suffered prejudice because
Kapoor was unprepared for the deposition is similarly
unpersuasive.
Defendants requested Kapoor’s deposition; he was
a non-party and was not under any obligation to appear.
Nonetheless, Kapoor appeared in New York City at his own expense
for the deposition.
The Court has reviewed Kapoor’s testimony.
Kapoor stated often that he could not adequately answer
questions without corresponding documents to review.
This is
not an uncommon occurrence at a deposition, and not a reason for
the deposition to be precluded.
Defendants should have
anticipated that Kapoor may not have been able to provide
details about transactions from several years prior without
documents to refresh his recollection.
Preclusion of his entire
testimony is not an appropriate remedy.
Defendants are free to attempt to impeach Kapoor’s
testimony at trial.
Regardless of whether Kapoor testifies at
trial, or whether his deposition testimony is used, the issue of
-14-
his truthfulness is for the jury to consider.
Preclusion under
Rule 403 is unwarranted.
B.
The Errata Sheet
After his deposition, Kapoor returned to Jaipur, India,
where he received his deposition transcript for review.
According to Plaintiff, Kapoor prepared the errata sheet and
executed it in Jaipur.
Defendants argue that Kapoor’s errata
sheet to his deposition testimony should be precluded because it
is not self-authenticating under Rule 902(3) of the Federal
Rules of Evidence.
Rule 30(e) of the Federal Rules of Civil Procedure permits
a deponent to make changes to his transcripts within thirty days
of the date the transcript is available for review. Fed. R. Civ.
P. 30(e)(1).
The witness may make changes “in form or
substance” and then must sign a statement listing the edits and
the reasons for making them. Fed. R. Civ. P. 30(e)(2).
Rule 901 of the Federal Rules of Evidence requires a
proponent of physical evidence to authenticate or identify it
prior to its admission.
Authentication or identification
requires a proponent to submit “evidence sufficient to support a
finding that the matter in question is what the proponent
claims.” Fed. R. Evid. 901(a).
This requirement is satisfied
“if sufficient proof has been introduced so that a reasonable
juror could find in favor of authenticity or identification.”
-15-
United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir. 1991).
Under Rule 902 of the Federal Rule of Evidence, certain
documents and records are “self-authenticating,” and do not
require any extrinsic evidence for authentication. United States
v. Pluta, 176 F.3d 43 (2d Cir. 1993).
Defendants argue that Kapoor’s errata sheet is inadmissible
because it has not been properly authenticated.
Rule 902(3)
governs whether foreign public documents are selfauthenticating.
Under this rule, a final certification by a
United States official that the document is genuine is a
prerequisite to self-authentication.
According to Defendants,
because the errata sheet was not accompanied by a final
certification of a United States official, it has not met Rule
902(3)’s standard for authentication.
A document is not
inadmissible simply because it fails to meet the requirements of
Rule 902(3).
“A document which is of a type that could be self-
authenticating but which does not meet all the requirements of
Rule 902 may nonetheless be authenticated by any means
appropriate under Rule 901.” Pluta, 176 F.3d at 49-50.
Therefore, even if the errata sheet is not self-authenticating
under Rule 902(3), its authenticity could still be established
upon the introduction of extrinsic evidence sufficient to
support a finding that the errata sheet was authored by Kapoor.
-16-
While Defendants’ argument in favor of exclusion fails,
Plaintiff’s argument that the lack of a final certification
should be excused and the errata sheet deemed authentic, is
equally unavailing.
Plaintiff correctly states that Rule 902(3)
permits a court to treat a document as “presumptively authentic”
in the absence of a final certification when:
(1) the parties
have been “given reasonable opportunity . . . to investigate the
authenticity and accuracy” of the document; and (2) there is a
showing of “good cause” by the proponent. Fed. R. Evid. 902(3).
Plaintiff also acknowledges that the proponent of the evidence
has the burden of establishing these two elements. United States
v. Yousef, 175 F.R.D. 192, 193 (S.D.N.Y. 1997).
The Court cannot treat the errata sheet as presumptively
authentic because Plaintiff has not met its burden of showing
good cause for Kapoor’s failure to obtain a final certification.
Rule 902(3) is derived from Rule 44(a)(2) of the Rules of Civil
Procedure. See Fed. R. Evid. 902 advisory committee's note;
Yousef, 175 F.R.D. at 192-93.
The notes accompanying Rule 44
elucidate the standard for good cause, indicating that good
cause should be found “only when it is shown that the party has
been unable to satisfy the basic requirements of the . . . rule
despite reasonable efforts.” Fed. R. Civ. P. 44 advisory
committee’s note.
Plaintiff’s assertion that the nearest United
States consulate is 160 miles away does not demonstrate
-17-
“reasonable efforts” to comply with the certification
requirements of Rule 902(3). See MTV Networks v. Lane, 998 F.
Supp. 390 (S.D.N.Y. 1998); Yousef, 175 F.R.D. at 192-93
(applying the “reasonable efforts” standard to find the document
not self-authenticated).
In some instances, courts will infer good cause if there is
a significant delay between the introduction of the document and
the opponent’s objection. Raphaely Int’l, Inc. v. Waterman S.S.
Corp., 972 F.2d 498 (2d Cir. 1992) (affirming admission of
uncertified document where opponent did not challenge its
authenticity in the nine years preceding trial).
However, in
this case Defendants have asserted a timely challenge to the
authenticity of the errata sheet.
Although the errata sheet is not self-authenticating under
Rule 902(3), extrinsic evidence of authentication could still be
introduced.
Therefore, the Court will address Defendants’ next
argument, that the errata sheet should be excluded because
Kapoor impermissibly made substantive changes to his deposition
answers in the errata sheet.
Courts in the Second Circuit
construe Rule 30(e) broadly, permitting any changes to the
deposition to be considered as part of the record, even where
they contradict the original answers. See Podell v. Citicorp
Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Desulma v.
City of New York, No. 98 Civ. 2078, 2001 WL 798002, at *4
-18-
(S.D.N.Y. July 6, 2001) (Ellis, Mag. J.); Hlinko v. Virgin Atl.
Airways, No. 96 Civ. 2873, 1997 WL 68563, at *1 (S.D.N.Y. Feb.
19, 1997) (Katz, Mag. J.).
Rule 30(e) allows for changes even
where the explanations for the edits are unconvincing. Hlinko,
1997 WL 68563, at *1.
Also, the original answers are still
admissible at trial. Desulma, 2001 WL 798002, at *4 (citing
Podell, 112 F.3d at 103).
long.
Kapoor’s errata sheet is six pages
It contains clarifications and corrections that he says
he made after reviewing his records.
At his deposition, Ms.
Zibas often instructed Kapoor to provide the answers at a later
date.
Where the changes contradict his original answers,
Defendants may introduce the original answers at trial if the
errata sheet is ultimately deemed admissible.
Preclusion of the
errata sheet is unwarranted on the ground that the errata sheet
substantively changes the deposition transcript.
-19-
III.
Conclusion
For the foregoing reasons,
preclude
Defendants' motion in limine to
Kapoor's deposition testimony
while the errata
sheet
the
of Rule
requirements
submitted by
902(3),
the
is denied.
Additionally,
Plaintiff does not satisfy
Court makes no ruling at
this time regarding its preclusion or admissibility.
SO ORDERED.
Dated:
New York,
January
New York
1
'
2012
J�:�
United
-20-
-
-�-----
States
District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?