Joffe v. King & Spalding LLP

Filing 242

ORDER with respect to 240 Motion for Reconsideration ; denying 241 Letter Motion to Stay. The motion to stay is DENIED. The Court anticipates ruling on the pending motion for reconsideration in short order. So Ordered. (Signed by Judge Valerie E. Caproni on 6/23/2020) (js)

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DAVID A. JOFFE, ESQ.

___________________________

155 Christopher Columbus Drive, Jersey City, NJ 07302 • 516-695-7086 • [e-mail]

June 19, 2020
VIA ECF
The Honorable Valerie E. Caproni
United States District Judge
Thurgood Marshall United States Courthouse
40 Foley Square
New York, NY 10007

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 06/23/2020

MEMO ENDORSED

Re: Joffe v. King & Spalding LLP, No. 17-cv-3392-VEC-SDA
Dear Judge Caproni:
The undersigned is the plaintiff in the above-captioned action, proceeding pro se.
On June 4, 2020, this Court issued a Memo Endorsed Order quashing the deposition subpoenas
served on third-party witnesses Meredith Moss and David M. Fine and ordering that their
depositions be conducted remotely. (See Doc. No. 239 at 6 (“Memo Endorsed Order”).) On June
18, 2020, the undersigned moved for reconsideration of the Memo Endorsed Order and for a
hearing on matters of judicial notice pursuant to Federal Rule of Evidence (“FRE”) 201(e). (See
Doc. No. 240 (“Motion for Reconsideration”).)
Pursuant to this Court’s Order dated May 20, 2020 (Doc. No. 238 (“Scheduling Order”)), all
remaining depositions in the above-captioned action currently must be completed by July 15,
2020, or twenty-six days from the date of the instant request (the “Deposition Period”). Pursuant
to Federal Rule of Civil Procedure (“FRCP”) 16(b)(4), the undersigned respectfully requests that
this Court stay the Deposition Period pending adjudication of the Motion for Reconsideration.
Plaintiff’s Position
The information required by this Court’s Individual Rule 2.C is as follows:
1. FRCP 16(b)(4) provides that “[a] schedule may be modified only for good cause and with
the judge’s consent.” The undersigned respectfully submits that his request to stay the
Deposition Period pending adjudication of the Motion for Reconsideration meets the goodcause standard under FRCP 16(b)(4) for the following reasons1:

1

The undersigned observes that “Defendant’s Position,” set forth below, does not address the good cause standard for
schedule modification under FRCP 16(b)(4), nor does it respond directly to the undersigned’s “reason[s] for the
proposed adjournment or extension,” which have been set forth herein pursuant to this Court’s Individual Rule 2.C.
Instead, defense counsel’s compulsion to immediately supplement its right of response with a three-point preview of
why it believes (at least a selection of) the undersigned’s jurisdictional, procedural, and substantive arguments in the
underlying motion “lack[] merit” only seems to highlight the wisdom of granting all parties an appropriate chance to
be fully heard and giving their merits arguments due consideration without unnecessary time constraints.

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First, staying the Deposition Period would ensure that this Court can consider the jurisdictional
and evidentiary questions raised in the Motion for Reconsideration which, as set forth therein,
the undersigned did not have an opportunity to raise previously at the threshold, before the relief
ordered in the Memo Endorsed Order takes full effect. With respect to jurisdiction, the Motion for
Reconsideration argues that this Court currently lacks subject-matter jurisdiction over Ms. Moss’s
and Mr. Fine’s subpoenas, which is a threshold issue at any stage of the proceeding. In turn, with
respect to the evidence rules, the Motion for Reconsideration requests, pursuant to FRE 201(e), a
hearing on matters of judicial notice. FRE 201(e) (emphasis added) specifically contemplates that,
where, as here, judicial notice is taken sua sponte, “[a] party, on request, is still entitled to be
heard.” Because “[t]he requirement that jurisdiction be established as a threshold matter ... is
inflexible and without exception,” see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998) (quotation omitted), and because FRE 201(e) entitles a party to be heard on the propriety of
taking judicial notice before a judicially-noticed fact becomes a basis for the issuance of relief,
staying the Deposition Period pending consideration of these questions would ensure that both the
jurisdictional and evidentiary horses are put before the cart.
Second, staying the Deposition Period pending adjudication of the Motion for Reconsideration
will not delay trial. At the May 7, 2020 teleconference at which the Court proposed the July 15,
2020 deadline, this Court expressed the concern that, if the Deposition Period is delayed further,
“once we decide we can do trials again, I don’t want the holdup to be that we have got this
hanging chad of two depositions. I want this case as one of the ones that should be trial ready as
soon as we are in a position to do trials.” May 7, 2020 Tr. (Doc. No. 236) at 12:19-23. In its
Scheduling Order entered thirteen days later, however, this Court directed the parties “to file a
joint status report by August 7, 2020, proposing possible trial dates in the fall.” The undersigned
respectfully submits that this Court’s directive in the May 20, 2020 Scheduling Order
automatically removes any possibility of a “hanging chad” in the following manner:
When the parties submit their joint status report on August 7, 2020, then, in the event the Motion
for Reconsideration remains sub judice,2 K&S and the ex-K&S partners will finally be put to a
decision: Either (i) Ms. Moss and/or Mr. Fine, as of August 7, will be willing to testify in-person
before the jury on the dates this fall proposed by the parties (assuming a civil jury trial in this
District in the fall will be feasible), demonstrating that their currently professed COVID-related
health concerns have been resolved; or (ii) Ms. Moss and Mr. Fine, as of August 7, will remain
unwilling to appear in-person on the proposed fall dates for a civil jury trial in this District that the
parties agree are otherwise feasible. If either or both witnesses are willing to testify in person this
fall, then such witness(es) should in turn be willing to give deposition testimony in-person shortly
after August 7 as well. And to the extent either witness is unwilling to attend trial in-person this
fall, then K&S would have to either de-designate such witness(es) as trial witnesses, in which case
their depositions will be rendered unnecessary, or K&S would have to request permission for such
witness(es) to testify before the jury remotely. In this latter case (as set forth in the Motion for
2

If the Motion to Reconsider does not remain sub judice but rather is adjudicated before the August 7, 2020 status
report deadline, then the remaining twenty-six days of the Deposition Period is a long enough period to accommodate
two depositions (whether they are in-person or remote) yet short enough to assure that trial scheduling will not be
adversely affected.

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Reconsideration), the undersigned would not oppose taking their deposition testimony remotely
shortly after the Court grants (should it do so) that such witness(es) trial testimony at the proposed
fall jury trial would be via remote video link as well. Under any of these eventualities, the August
7, 2020 status report deadline set by this Court guarantees both that the Deposition Period can be
stayed pending adjudication of the Motion for Reconsideration and that this case nevertheless
“will be trial ready as soon as we are in a position to do trials.”
Finally, as Second Circuit has held, in applying its discretion to “the requirement[s] under Rule
16(b)” for modification of a scheduling order, the court’s “finding of good cause depends on the
diligence of the moving party” in attempting to comply with the schedule-in-place. See
Grochowski v. Phoenix Construction, Ypsilon Constructions Corp., 318 F.3d 80, 87 (2d Cir.
2003). Here, the Memo Endorsed Order stated that the undersigned exercised “extraordinary”
diligence in addressing Ms. Moss’s and Mr. Fine’s health-and-safety concerns relating to inperson testimony. Thus, this is clearly not a situation in which an attorney asks for more time in
the hopes the Court will rescue him from a deadline that he was too lackadaisical to meet. Rather,
the undersigned’s purpose in seeking a stay of the Deposition Period in to ensure that his (newlyraised) grounds set forth in the Motion for Reconsideration are addressed by the Court before the
relief set forth in the Memo Endorsed Order fully takes effect. The undersigned respectfully
submits that, because he has shown no lack of diligence in pursuing discovery and because, as
set forth supra, the requested stay will not affect trial scheduling, yet will allow for the issues
raised in the Motion for Reconsideration to be considered the instant request fully satisfies
FRCP 16(b)’s good-cause requirement, and, more broadly, is also fully consistent with the federal
rules’ goal of “just, speedy, and inexpensive determination of every action and proceeding,” FRCP
1.
2. The original due date for the completion of out-of-time depositions was May 15, 2020.
This deadline was subsequently extended from May 15, 2020 to May 29, 2020; and again
from May 29, 2020 to July 15, 2020.
3. The undersigned has made one previous request to adjourn the deadline for the completion
of out-of-time depositions, from May 15, 2020 to May 29, 2020, which request was
granted by this Court. Subsequently, the May 29, 2020 deadline was adjourned to July 15,
2020 at the Court’s suggestion during the May 7, 2020 teleconference.
4. The position of Defendant King & Spalding and the third-party witnesses, Ms. Moss and
Mr. Fine, are set forth infra.
5. The alternative deadline proposed for the completion of out-of-time depositions is twentysix days after the adjudication of the Motion for Reconsideration, that being the period
remaining between the date of instant request and the current deposition deadline of July
15, 2020.
***

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Defendant’s Position
Defendant King & Spalding and non-parties Meredith Moss and David Fine oppose any further
adjournments of the depositions of Ms. Moss and Mr. Fine. This Court has already directed the
parties to proceed by remote deposition, Dkt. 239, and the depositions of Ms. Moss and Mr. Fine
have already been scheduled for the week of July 13, 2020.
Plaintiff’s recently-filed motion for reconsideration lacks merit and therefore does not justify a
further delay of the depositions. Although we will respond to Plaintiff’s 25-page motion in full in
due course should the Court not deny the motion outright, we briefly note the following points:
1. Plaintiff mischaracterizes this Court’s June 4 order as having “quashed” the deposition
subpoenas. Ms. Moss and Mr. Fine remain willing to sit for videoconference depositions
pursuant to the subpoenas that were served on them, and those subpoenas remain effective
and in force.
2. Plaintiff’s motion impermissibly raises a new argument for the first time. Plaintiff has
already had three separate opportunities to present his arguments to the Court regarding
remote depositions: (i) in a May 6, 2020 joint letter to the Court (Dkt. 235); (ii) during a
May 7, 2020 conference with the Court (Dkt. 236); and (iii) in a June 3, 2020 joint letter to
the Court (Dkt. 239). In none of those communications did Plaintiff argue, as he argues for
the first time in his motion for reconsideration, that this Court lacks jurisdiction to direct
the parties to proceed by remote deposition. See Dkt. 240 at 12-15. To the contrary, he
agreed to submit this question to this Court without raising any objection regarding the
Court’s jurisdiction to decide this issue.
3. Plaintiff fails to offer any argument that would support reconsideration of this Court’s
previous order directing remote depositions. Plaintiff’s obsessive insistence on in-person
depositions during a pandemic is based on nothing more than his own subjective “belief”
that he cannot adequately assess witness credibility on a videoconference. See Dkt. 240 at
7 n.7 and 21. Revealingly, Plaintiff does not identify a single case endorsing his view that
depositions by videoconference present an impediment to assessing witness credibility.
This is unsurprising, because courts have repeatedly rejected this argument, both before
and during the current pandemic. See, e.g., Sec. & Exch. Comm’n v. Aly, 320 F.R.D. 116,
119 (S.D.N.Y. 2017) (rejecting argument that deposition by videoconference “would
deprive the [plaintiff] the opportunity to adequately evaluate the credibility of defendant”);
Tangtiwatanapaibul v. Tom & Toon Inc., No. 17-cv-00816 (LGS)(KHP), 2017 WL
10456190, at *3 (S.D.N.Y. Nov. 22, 2017) (rejecting argument that deposition by
videoconference “would not provide an adequate opportunity to evaluate credibility”
because “[v]ideoconferencing technology will permit observation of the deponent” and
noting that “courts routinely permit depositions by videoconference”) (citing cases);
Lundquist v. First Nat’l Ins. Co. of Am., No. 18-5301 RJB, 2020 WL 3266225, at *2 (W.D.
Wash. June 17, 2020) (“Since credibility is at issue, the depositions should occur by
videoconference.”); Learning Res., Inc. v. Playgo Toys Enterprises Ltd., No. 19-cv-00660,

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2020 WL 3250723, at *3 (N.D. Ill. June 16, 2020) (noting that “many courts have held that
remote videoconference depositions offer the deposing party a sufficient opportunity to
evaluate a deponent’s nonverbal responses, demeanor, and overall credibility”) (citing
cases).
Because, as we will explain in detail if necessary, Plaintiff’s motion for reconsideration is devoid
of merit and should be denied, there is no reason to further delay the depositions of Ms. Moss and
Mr. Fine.
***
Thank you for your consideration of the foregoing.
Respectfully submitted,
/s/ David A. Joffe
e
David A. Joffe, Esq. (pro se)
155 Christopher Columbus Drive
Jersey City, NJ 07302
516-695-7086
[e-mail]
CC (via ECF): All counsel

The motion to stay is DENIED. The Court anticipates ruling on the pending motion for
reconsideration in short order.
SO ORDERED.

Date: 06/23/2020

HON. VALERIE CAPRONI
UNITED STATES DISTRICT JUDGE