CBF Industria De Gusa S/A et al v. Amci Holdings,Inc., et al

Filing 517

ORDER denying without prejudice 509 Letter Motion for Discovery. In sum, the facts and circumstances augur in favor of a denial of the request for a Prime Carbon 30(b)(6) witness at this time. After Defendants potentially make additional produc tion and/or provide additional clarifications on the issues, and the deposition of the former Prime Carbon director takes place, the record will be more fully developed. If Plaintiffs still believe that a Prime Carbon 30(b)(6) deposition can thereafter be justified, they may renew their request. The Clerk is respectfully directed to closed Docket No. 509 and mark it as "denied without prejudice." (Signed by Magistrate Judge James L. Cott on 5/19/2021) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CBF INDUSTRIA DE GUSA S/A, et al.,
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Plaintiffs,
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-v:
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AMCI HOLDINGS, INC., et al.,
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Defendants.
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5/19/2021

ORDER
13-CV-2581 (PKC) (JLC)

JAMES L. COTT, United States Magistrate Judge.
Plaintiffs have moved to compel five hours of testimony from a Prime Carbon designee
under Rule 30(b)(6) concerning three issues: (1) Mende’s control over SBT’s and Prime
Carbon’s operations (“Mende’s Control”); (2) whether and how the Transfer Agreement
transferred SBT’s bank liabilities to Prime Carbon (“Transfer Agreement”); and (3) allegedly
sizable discrepancies among the various balance sheets used to document the transfer of SBT’s
assets and liabilities to Prime Carbon (“Balance Sheets”). Defendants oppose the request for a
Prime Carbon 30(b)(6) deposition, at least as “currently constituted,” because it is “objectively
unreasonable.” Defendants’ May 7 letter (“Def. Ltr.”) at 1. They do not believe any further
30(b)(6) testimony is appropriate in this action. At a minimum, they request that the deposition
of a former director of Prime Carbon be completed first.
Having reviewed the parties’ submissions related to this dispute, the Court denies
Plaintiffs’ motion to compel without prejudice. As a threshold matter, it is not clear to the Court
why the issues identified need to be explored with a 30(b)(6) witness when other witnesses have
already addressed at least the first two issues. It appears that Plaintiffs may be seeking to take a
30(b)(6) deposition as a “clean-up” following the depositions of several witnesses who were

directly involved in the events underlying their claims. As Defendants correctly argue, this is an
inappropriate use of a 30(b)(6) deposition. Def. Ltr. at 3, n.2 (citing cases). Moreover, the Court
believes that some if not all the issues identified by Plaintiffs that they believe necessitate the
testimony of a Prime Carbon 30(b)(6) witness may be addressed in the deposition to be taken of
the former Prime Carbon director, which awaits German court approval. 1
Specifically, on the issue of Mende’s Control, Plaintiffs have already deposed almost a
half dozen witnesses on this topic. In several of these depositions, the deponents identified the
former Prime Carbon director, whose deposition is yet to be taken, as the one with knowledge of
SBT management’s interactions with AMCI. It would thus behoove Plaintiffs to take this
deposition first and then determine whether there is still a basis to justify a 30(b)(6) deposition
on this topic.
On the Transfer Agreement issue, Defendants have agreed to provide certain information.
Def. Ltr. at 3. Moreover, Plaintiffs have already deposed the lawyers who drafted the Transfer
Agreement. It appears that Plaintiffs may wish to depose a Prime Carbon 30(b)(6) witness about
certain legal aspects of the Agreement, which would be improper as a 30(b)(6) deponent cannot
be asked for legal conclusions. Def. Ltr. at 4 n.3 (citing cases). Thus, the request related to this
issue appears premature, or alternatively is beyond the proper scope of a 30(b)(6) deposition.
Finally, as to the Balance Sheets, an issue only recently identified by Plaintiffs,
Defendants have represented that they are looking into the matter, will identify which balance
sheet entries are correct, and may rely on the testimony from the former Prime Carbon director
depending upon his knowledge of the topic. Def. Ltr. at 5.

1

The parties have redacted the individual’s name in their submissions to the Court so this Order
will not identify the individual by name at this time.
2

In sum, the facts and circumstances augur in favor of a denial of the request for a Prime
Carbon 30(b)(6) witness at this time. After Defendants potentially make additional production
and/or provide additional clarifications on the issues, and the deposition of the former Prime
Carbon director takes place, the record will be more fully developed. If Plaintiffs still believe
that a Prime Carbon 30(b)(6) deposition can thereafter be justified, they may renew their request.
The Clerk is respectfully directed to closed Docket No. 509 and mark it as “denied
without prejudice.”
SO ORDERED.
Dated: May 19, 2021
New York, New York

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