Pirnik v. Fiat Chrysler Automobiles N.V. et al
Filing
240
MEMORANDUM OPINION AND ORDER re: 219 MOTION to Quash Supboenas for Documents and Testimony . filed by Gary Koopman, Timothy Kidd, Victor Pirnik. For the foregoing reasons, Plaintiffs' motion to quash is GRANTED in part and DEN IED in part. Specifically, Plaintiffs' motion is granted to the extent that Defendants' subpoenas seek testimony or documents from Ms. Stanley, testimony or documents from Mr. Maio pertaining to CWs other than Crabb, and interview notes a nd memoranda from Mr. Maio. By contrast, Plaintiffs' motion is denied to the extent that they seek Mr. Maio's deposition regarding his communications with Crabb and responsive documents other than interviews notes and memoranda. In view o f its limited scope, the deposition of Mr. Maio shall not exceed two hours and shall be conducted within the next three weeks. Plaintiffs shall produce any responsive documents and/or a privilege log at least two days prior to the deposition. The Clerk of Court is directed to terminate Docket No. 219. SO ORDERED. (Signed by Judge Jesse M. Furman on 8/2/2018) (ne)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
VICTOR PIRNIK, individually and on behalf of all
:
others similarly situated,
:
:
Plaintiff,
:
:
-v:
:
FIAT CHRYSLER AUTOMOBILES, N.V., et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
08/02/2018
15-CV-7199 (JMF)
MEMORANDUM OPINION
AND ORDER
JESSE M. FURMAN, United States District Judge:
On June 4, 2018, the Court entered a Memorandum Opinion and Order in this securities
fraud class action, familiarity with which is presumed, granting the motion of Fiat Chrysler
Automobiles, N.V. (“FCA”) and the other Defendants to compel Lead Plaintiffs Gary Koopmann
and Timothy Kidd and Plaintiff Victor Pirnik (collectively, “Plaintiffs”) to disclose the identities
of those who had communicated with purported “Confidential Witnesses” (“CWs”) referenced in
the Fourth Amended Complaint (“FAC”). (Docket No. 207 (“Order”)). That decision was based
on a sworn declaration from Alex Crabb (the “Crabb Declaration”) — identified in the FAC as
“CW1” — that statements attributed to him in the FAC did “not accurately reflect” what he had
said to a “man identifying himself as a ‘counselor’” for Plaintiffs. (Id. at 2). At the Court’s
direction, Plaintiffs disclosed that two of their investigators, Patrick Maio and Stephanie Stanley,
had communicated with the CWs, and Defendants then served subpoenas seeking the
investigators’ testimony and documents relating to their communication with the CWs. Plaintiffs
now move, pursuant to Rule 45(d)(3) of the Federal Rules of Civil Procedure, to quash the
subpoenas. (Docket No. 219). For the following reasons, Plaintiffs’ motion is granted in part
and denied in part.
Defendants correctly note that the Court already considered and rejected many of the
arguments that Plaintiffs press here when it granted Defendants’ motion to compel. For instance,
Plaintiffs repeat their contentions that there are no inconsistencies between the statements
attributed to CW1 in the FAC and the Crabb Declaration, (compare Docket No. 220 (“Pls.’
Mem.”), at 8-9, with Docket No. 206 (“Pls.’ Ltr. Br.”), at 2-3); that the information sought is
irrelevant, largely because “the Court did not rely on the statements of CW1 in makings its
determination on [Defendants’] motion to dismiss,” (compare Pls.’ Mem. 5, 7 with Pls.’ Ltr. Br.
3); and that the information is categorically protected by the work product doctrine and its
exceptions do not apply, (compare Pls.’ Mem. 12-23 with Pls.’ Ltr. Br. 1-2). As Plaintiffs may
not seek reconsideration of the Court’s prior decision in the guise of a motion to quash, the Court
declines to consider any argument that Plaintiffs previously made without success. As
Defendants point out, there would be little purpose to the Court’s prior Order requiring Plaintiffs
to disclose the identities of their investigators if Defendants were barred from using that
information to conduct any “further inquiry.” (Docket No. 228 (“Defs.’ Mem.”), at 11-12).
That said, Plaintiffs press some new arguments, and those arguments do warrant quashing
Defendants’ subpoenas in part. In the first instance, the disparities Defendants have identified
are limited to CW1 and the investigator who spoke with him, Mr. Maio. (Pls.’ Mem. 9). In their
opposition to Plaintiffs’ motion, Defendants elide the distinctions among the three CWs and
between the two investigators, but they ultimately identify no specific concerns with the other
CWs whose statements were used to bolster Plaintiffs’ allegations in the FAC or any
inconsistencies arising out of interviews conducted by Ms. Stanley. Accordingly, Defendants
2
fail to show that the subpoenas it directed to Ms. Stanley are relevant, see Fed. R. Civ. P.
26(b)(1), and the Court grants Plaintiffs’ motion to quash those subpoenas. Similarly,
Defendants fail to show the need for discovery with respect to communications with the other
CWs. Accordingly, the subpoenas directed to Mr. Maio are quashed to the extent that they seek
information concerning his communications with anyone other than CW1. See id.
With regard to Mr. Maio, the Court continues to be of the view that further inquiry into
the discrepancies between the statements attributed to CW1 in the FAC and the allegations in the
Crabb Declaration is warranted, and the discovery sought is proportional to the needs of the case.
See id.; cf., e.g., In re Symbol Techs., Inc. Sec. Litig., No. 05-CV-3923 (DRH) (AKT), 2017 WL
1233842, at *11 (E.D.N.Y. Mar. 31, 2017) (concluding that witness interview memoranda in a
securities fraud suit were relevant under Rule 26(b)(1) because they “contain[ed] factual
information elicited from the [confidential informants] bearing upon Plaintiff’s allegations of
[Defendant’s] wrongdoing”). The Court does not agree with Plaintiffs that the full scope of
discovery sought from Mr. Maio is necessarily protected work product. At a minimum,
Defendants are entitled to take Mr. Maio’s deposition and inquire into his communications with
CW1 and the purported discrepancies between those communications and the statements
attributed to Mr. Maio in the FAC. See City of Pontiac Gen. Emps.’ Ret. Sys. v. Lockheed
Martin Corp., 952 F. Supp. 2d 633, 636-37 (S.D.N.Y. 2013); In re Millennial Media, Inc. Sec.
Litig., No. 14-CV-7923 (PAE), 2015 WL 3443918, at *4, *6-12 (S.D.N.Y. May 29, 2015). To
the extent that any questions asked of Mr. Maio call for testimony that would reveal counsel’s
mental processes, see Feacher v. Intercontinental Hotels Grp., No. 06-CV-0877, 2007 WL
3104329, at *2 (N.D.N.Y. Oct. 22, 2007), Plaintiffs may object at the deposition. The work
product doctrine is not a valid basis to preclude a deposition altogether.
3
Defendants’ request for documents requires more analysis, as such items are categorically
protected by the work product doctrine to the extent that they tend to reveal the “mental
impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative
concerning the litigation.” Fed. R. Civ. P. 26; see also United States v. Nobles, 422 U.S. 225,
238-39 (1975) (“[A]ttorneys often must rely on the assistance of investigators and other agents in
the compilation of materials in preparation for trial. It is therefore necessary that the [work
product] doctrine protect material prepared by agents for the attorney as well as those prepared
by the attorney himself.”). The Court agrees with Plaintiffs that the work product doctrine
protects Mr. Maio’s interview notes and memoranda. See, e.g., In re Gen. Motors LLC Ignition
Switch Litig., 80 F. Supp. 3d 521, 532 (S.D.N.Y. 2015) (“Interview notes and memoranda
produced in the course of . . . investigations have long been considered classic attorney work
product.”); see also Upjohn Co. v. United States, 449 U.S. 383, 399 (1981) (“Forcing an attorney
to disclose notes and memoranda of witnesses’ oral statements is particularly disfavored because
it tends to reveal the attorney’s mental processes.” (citation omitted)). Defendants do not show
that they have a “substantial need” in defending this case on the merits to review those
documents. See, e.g., SEC v. Nadel, No. 11-CV-215 (WFK) (AKT), 2013 WL 1092144, at *2
(E.D.N.Y. Mar. 15, 2013). And the Court concludes that Plaintiffs did not waive protection of
the doctrine by using CW1’s statements — rather than affirmatively relying on the interview
notes and memoranda themselves — in the FAC. Cf. In re Gen. Motors, 80 F. Supp. 3d at 534.
Plaintiffs do not justify quashing the request for documents beyond interview notes and
memoranda, as they barely address other such documents at all, and there is no reason to
conclude that any and all responsive documents would necessarily be covered by the work
product doctrine. See, e.g., Johnson v. Bryco Arms, No. 02-CV-3029, 2005 WL 469612, at *5
4
(E.D.N.Y. Mar. 1, 2005) (“On its face the disputed document supports the conclusion that it is a
straightforward description of events by the witness, showing no input from attorneys.”). To the
extent Plaintiffs believe that other responsive documents are privileged or covered by the work
product doctrine, they may seek to protect them through a privilege log in the normal course.
They may not refrain from complying altogether.
For the foregoing reasons, Plaintiffs’ motion to quash is GRANTED in part and DENIED
in part. Specifically, Plaintiffs’ motion is granted to the extent that Defendants’ subpoenas seek
testimony or documents from Ms. Stanley, testimony or documents from Mr. Maio pertaining to
CWs other than Crabb, and interview notes and memoranda from Mr. Maio. By contrast,
Plaintiffs’ motion is denied to the extent that they seek Mr. Maio’s deposition regarding his
communications with Crabb and responsive documents other than interviews notes and
memoranda. In view of its limited scope, the deposition of Mr. Maio shall not exceed two hours
and shall be conducted within the next three weeks. Plaintiffs shall produce any responsive
documents and/or a privilege log at least two days prior to the deposition.
The Clerk of Court is directed to terminate Docket No. 219.1
SO ORDERED.
Date: August 2, 2018
New York, New York
1
Plaintiffs insist that they should be permitted to depose Crabb in advance of any
depositions of the investigators. (Pls.’ Mem. 24-25 (“It would be completely unfair to allow
Defendants to take the depositions of Plaintiffs [sic] investigators without permitting the
deposition of Mr. Crabb, so that Plaintiffs can examine him concerning the statements he made
in his declaration and his overall story.”)). To the extent Plaintiffs’ request is procedurally
proper, it is denied. The Court is again unpersuaded by Plaintiffs’ efforts to circumvent Courtimposed discovery deadlines and limitations on the number of fact depositions. (See Docket No.
200; Order 1-2). If Plaintiffs wanted to examine Crabb “concerning . . . his overall story,” they
had ample opportunity to do so prior to the deadline for fact discovery.
5
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?