Royal Park Investments SA/NV v. U.S. Bank National Association

Filing 161

MEMORANDUM AND ORDER. For the foregoing reasons, Royal Park's application is granted, and the notices of deposition for Fabrice Susini, Stefaan De Doncker, and Rafael Martinez are quashed without prejudice to reinstituting the latter two after the depositions of Danny Frans and Koen Weemaes have been completed. So ordered. (Signed by Magistrate Judge James C. Francis on 1/25/2017) Copies transmitted this date. (rjm)

that “the assignee of a claim in litigation has a duty to obtain
and

produce

the

same

documents

and

information

to

which

the

opposing parties would have been entitled had the assignors brought
the claim themselves.”

Deutsche Bank, 314 F.R.D. at 344.

U.S.

Bank is correct that this principle is equally applicable to
witnesses as it is to documents.

See Winnick I, 228 F.R.D. at 508

(noting assignee’s obligation to, among other things, “produce
witnesses for deposition” from assignors).
Smith dated Jan. 6, 2017 at 3 n.1).

(Letter of Benjamin P.

Just as Royal Park could have

secured the cooperation of the assignors in producing documents
when it negotiated the assignment, so it could have secured an
agreement to produce witnesses.
This proposition does not apply, however, to Mr. Susini, who,
according to Royal Park, “has never been employed by any Fortis
entity.”

(Letter of Darryl J. Alvarado dated Jan. 10, 2017

(“Alvarado 1/10/17 Letter”) at 2 n.4).

Royal Park also argues

that it does not apply to Mr. De Doncker and Mr. Martinez because
they are non-parties to this litigation, and the court in a
subsequent order in the Winnick case “den[ied] a motion to compel
assignors to produce documents”
parties.

because these assignors were non-

(Alvarado 1/10/17 Letter at 2 n.4 (citing J.P. Morgan

Chase Bank v. Winnick, No. 03 Civ. 8535, 2006 WL 278192, at *2
(S.D.N.Y. Feb. 6, 2006) (“Winnick II”)).
Winnick II.

Royal Park misreads

In that case, the court held only that, as a non2

party, the assignor, against whom discovery was sought directly,
was entitled to the heightened protection afforded by Rule 45 of
the Federal Rules of Civil Procedure.

2006 WL 278192, at *2.

At

the same time, the court warned that if the assignee could not
produce relevant information because it was exclusively in the
possession of the assignors, and if the defendants could show
prejudice, the defendants could be entitled to sanctions.
*3.

Id. at

Here, U.S. Bank has not sought discovery directly from BPPNF

or its employees, but rather from Royal Park. Thus, the principles
of Winnick I apply with full force.
At the same time, Royal Park makes a compelling argument that
discovery should first be taken from Danny Frans and Koen Weemaes
-- cooperative witnesses who likely possess substantially greater
information -- before requiring Royal Park to produce more marginal
and

potentially

uncooperative

deponents.

Accordingly,

the

deposition notices for Stefaan De Doncker and Rafael Martinez are
quashed for the time being.
Conclusion
For

the

foregoing

reasons,

Royal

Park’s

application

is

granted, and the notices of deposition for Fabrice Susini, Stefaan
De Doncker, and Rafael Martinez are quashed without prejudice to
reinstituting the latter two after the depositions of Danny Frans
and Koen Weemaes have been completed.

3