Joffe v. King & Spalding LLP

Filing 243

MEMORANDUM OPINION AND ORDER: re: 240 MOTION for Reconsideration. re: 239 Endorsed Letter and for a Hearing Pursuant to FRE 201(e) filed by David A. Joffe, 226 SECOND LETTER MOTION for Leave to File Supplemental Motion in Limine Regarding Defendant's Newly-Designated Fact Witnesses addressed to Judge Valerie E. Caproni from David A. Joffe dated March 9, 2020. filed by David A. Joffe. For the foregoing reasons, Joffe's motion for reconsideration is denied. The Clerk of Cour t is respectfully directed to terminate the pending motions at docket entries 226 and 240. All interested parties are directed to proceed with the depositions of Moss and Fine via video conference no later than July 15, 2020. SO ORDERED. (Signed by Judge Valerie E. Caproni on 6/24/2020) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
DAVID A. JOFFE,
:
:
Plaintiff,
:
-against:
:
KING & SPALDING LLP,
:
:
Defendant.
:
-------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 06/24/2020
17-CV-3392 (VEC)
MEMORANDUM
OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:
Plaintiff David Joffe, a licensed attorney, is representing himself. Although he is entitled
to some indulgence due to his pro se status, the level of his litigiousness is generally not seen in
this Court. Joffe’s current motion for reconsideration is obtuse and reflects a complete lack of
any sense of proportionality.
Amidst a historic and ongoing pandemic that has killed over 120,000 Americans within
the span of a few months and continues to spread like wildfire, Joffe demands that non-party
witnesses be deposed in-person rather than via video conference, even though their testimony is
unlikely to be central to the case. According to his motion for reconsideration, Joffe’s powers of
observation allow him to detect lies based on a witness’s eye movements—but not if the
witness’s face is “beamed” through a camera. See Joffe Br. (Dkt. 240) at 21. In fact, direct eye
contact is purportedly so paramount that Joffe would prefer to interrogate masked and socially
distanced witnesses in-person than to observe each witness’s unobstructed facial expressions upclose via video conference. As detailed below, the Court sees no reason to increase the danger to
the health of the non-party witnesses by requiring in-person depositions and rejects this latest
tomfoolery.

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BACKGROUND
This action concerns Joffe’s claim that he was terminated in retaliation for raising ethical
concerns while an associate at Defendant King & Spalding LLP (“K&S”); K&S maintains that
Joffe was fired for poor performance. The facts pertinent to Joffe’s pending motion are not in
dispute.
According to their joint pre-trial submissions, the parties contemplate calling a total of 10
current or former K&S partners to testify, primarily concerning Joffe’s performance, the firm’s
employment practices and policies, and the decision to terminate Joffe. Dkt. 224 at 4–8. Two of
the former partners are Meredith Moss and David Fine; like the other K&S witnesses, they are
expected to testify about Joffe’s performance at K&S, his removal from partnership track, or his
eventual termination.1 Id. at 7–8; Dkt. 235 at 1.
On March 4, 2020, Joffe sought leave to file a motion in limine (after the original
deadline) to preclude Moss and Fine from testifying because K&S had failed to disclose them as
potential witnesses as required by Rule 26 of the Federal Rules of Civil Procedure. Dkt. 222.
The Court denied that motion because, in contrast to K&S’s thorough explanation, Joffe had not
provided any reason to believe that the non-disclosure was prejudicial, given that Joffe had
worked with both Moss and Fine and therefore knew that both could have relevant testimony
about his performance. Dkt. 223. Additionally, Moss and Fine had both been mentioned as
persons with relevant knowledge at various points during discovery, including in K&S’s
interrogatory responses. Id.

Given the lengthy list of K&S partners proposed as trial witnesses, neither Moss nor Fine is certain to
testify at trial, as the Court will determine during the final pretrial conference whether Moss or Fine have noncumulative testimony. During the scheduled discovery period in this case, Joffe did not depose either.
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After the Court’s denial, Joffe filed a second motion for the same relief, which was an
improper motion for reconsideration after failing to raise his arguments in the original
submission. See Dkt. 226. The Court would have denied Joffe’s motion but for the COVID-19
pandemic, which prompted the Court to hold a teleconference to reset the trial schedule. Hearing
Tr. (Mar. 17, 2020) (Dkt. 231). Because the trial was adjourned from April 20 to July 20, 2020,
there was ample time for Joffe to depose Moss and Fine, which would eliminate any possibility
of prejudice from K&S’s late disclosure. Dkt. 230. The Court ordered that the depositions be
completed by May 15, 2020. Id. Due to continuing pandemic conditions, the parties requested
an extension to May 29, 2020, which the Court granted with the caveat that, should the pandemic
conditions persist, the parties should consider remote depositions.2 Dkt. 233.
On May 7, 2020, Joffe and defense counsel informed the Court that they had reached an
impasse on whether the depositions should be taken remotely. Dkt. 235. In that same letter,
counsel for K&S, Proskauer Rose LLP (“Proskauer”), indicated that although neither Moss nor
Fine is currently affiliated with K&S, it was now representing both witnesses and had agreed to
accept service as their counsel. Id. According to Proskauer’s letter, Moss now resides in Salt
Lake City, Utah, while Fine resides in New York City. Id. Joffe had noticed Moss’s deposition
for Salt Lake City, while Fine’s was to occur in Tarrytown, New York. Id. The Court convened
a teleconference on the same day to hear argument on the appropriate format of the depositions.
Id.

The Court did so mindful that most attorneys would prefer in-person depositions, all other things being
equal. Of course, pandemic circumstances render all other things not equal, and many cases are proceeding through
discovery despite these conditions, aided by the ability to conduct remote depositions through video conferencing.
Mr. Joffe is the sole litigant before this Court who has insisted on the ability to take in-person depositions, despite
the health risks to all involved.
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At the hearing, Joffe argued that he would like “to be able to observe the witnesses’
manner and demeanor and all the things that determine credibility in the same way that the jury
would at trial.” Hearing Tr. (May 7, 2020) (Dkt. 236) at 3. The Court inquired into the safety
precautions that Joffe had purportedly taken to protect the witnesses; he indicated that he had
located conference rooms that normally could accommodate 12 people, and that the facilities
were in suburban locations that had adopted cleaning and social distancing policies. Id. at 4–5.
The size of the conference table, according to Joffe, would allow six feet of separation for only
three people—that is, one person at each end of the table with one person in the middle. Id. The
Court noted that such conference space may be inadequate, given that there were likely to be at
least five individuals in attendance. Id. at 6. The Court further noted that, once Joffe is six feet
away from the witness, the deposition might as well be taken via video. Id. at 7. Proskauer
argued that public health guidelines discouraged unnecessary personal contact and that the
maintenance of six feet of separation was insufficient to protect the witnesses’ health and safety;
the depositions would still require Moss and Fine to travel to and spend time inside public
facilities, including public restrooms and elevators. Id. at 8–9. Counsel for the witnesses also
noted that attendees would likely be wearing masks, which would frustrate Joffe’s alleged ability
to assess credibility. Id.
The Court, however, tabled the concerns about Joffe’s proposed deposition format
because the July jury trial was unlikely to occur as scheduled due to the persistent pandemic
conditions. Id. at 10. The parties were given until July 15, 2020, to complete the depositions, in
hopes that conditions might sufficiently improve over the summer as to render the dispute moot.
Id. That proposed course of action, to which Joffe did not object, was to wait and see if the
health risks eased by July—and if they did not, then Joffe would proceed via video conference

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without complaint. Id. The Court, as a matter of case management, preferred then and continues
to prefer now that this case be trial-ready as soon as jury trials resume in the district. Id. at 12.
On June 4, the parties and the witnesses reached another impasse and filed a joint letter
with the Court, reiterating their positions on remote versus in-person depositions. Dkt. 239.
Consistent with prior practice during the pandemic and the Court’s preference for resolving
discovery dispute, Joffe and Proskauer submitted a letter to request a teleconference. Moss’s
deposition remained noticed for Salt Lake City, although Fine’s had been relocated to
Bethlehem, Pennsylvania, where Plaintiff had identified a larger conferencing facility 90 miles
outside of New York City. Id. at 1–2. Moss and Fine reiterated their reluctance, due to the
ongoing pandemic, to spend “hours testifying in an enclosed indoor space with non-family
members.” Id. at 1–2. Joffe meanwhile argued that the pandemic had, in fact, eased, noting that
Utah and NY are moving into the early stages of reopening. Id. at 4–5. Joffe also raised the new
procedural argument that Moss and Fine should be required to file a formal motion with
evidentiary support in order to object to the in-person deposition—even though the Court and all
interested parties previously agreed that the only relevant question at this stage would be whether
the pandemic had eased. Id. at 5.
The Court declined to hold another teleconference because the letter already detailed all
interested parties’ respective arguments, and the Court had already heard oral argument on the
relative merits of in-person and remote depositions. Id. at 6. The Court rejected Joffe’s
argument as to Utah’s and New York’s reopening efforts—the burden on witnesses is the risk of
exposure and infection, which undoubtedly remains significant, notwithstanding various local
and state government’s decisions to loosen restrictions. Id. The Court commended Joffe’s
efforts to find a large conference room but explained that the maintenance of six feet of distance

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is not the end-all-and-be-all of COVID-19 risk; depending on the environmental conditions, such
as during prolonged periods of indoor exposure, six feet of distance may not be sufficient to
prevent transmission. Id.
Joffe now moves for reconsideration on several grounds. He claims that this Court lacks
subject-matter jurisdiction over the dispute because any motion to quash or modify a third-party
subpoena must, pursuant to Rule 45, be filed in the district of compliance, which would be the
District of Utah and the Eastern District of Pennsylvania for Moss and Fine, respectively. Joffe
Br. at 12. Joffe also reiterates his argument that Moss and Fine should be required to file a
formal motion with supporting affidavits in order to quash or modify the subpoena. Id. at 15.
Joffe then argues that Moss and Fine failed to carry their burden of showing that in-person
depositions would be unduly burdensome, in part because the Court erred in presuming that the
attendees at the depositions would not be wearing facemasks. Id. at 20. Similarly, Joffe
contends that this Court should not take judicial notice of COVID-19’s infectiousness because
the Court’s conclusion is inconsistent with guidance from the Centers for Disease Control and
Prevention (“CDC”); Joffe then proposes a hearing on CDC’s recommendation that individuals
remain six-feet apart. Id. at 22–23.
DISCUSSION
A motion for “reconsideration will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL
Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (“A motion for reconsideration should be
granted only when the defendant identifies an intervening change of controlling law, the

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availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
(citation omitted)). Reconsideration “should not be granted where the moving party seeks solely
to relitigate an issue already decided.” Shrader, 70 F.3d at 257.
1. Subject-Matter Jurisdiction
Joffe’s argument that Rule 45 deprives this Court of subject-matter jurisdiction is
frivolous. Apparently recognizing that he had waived his procedural argument, Joffe claims that
Rule 45’s instruction that a motion to quash or modify a subpoena be filed in the district of
compliance is a non-waivable jurisdictional requirement. He cites, however, no relevant
authority to that effect.
As a general matter, the Federal Rules of Civil Procedure do not (and cannot) alter the
subject-matter jurisdiction of the federal courts. Fed. R. Civ. P. 82 (“These rules do not extend
or limit the jurisdiction of the district courts.”). Subject-matter jurisdiction flows from Article III
of the United States Constitution and is constrained by congressional legislation; the Federal
Rules neither expand nor contract jurisdiction.3 See Owen Equip. & Erection Co. v. Kroger, 437
U.S. 365, 370 (1978) (“[I]t is axiomatic that the Federal Rules of Civil Procedure do not create or
withdraw federal jurisdiction.”); see also Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714,
(2019) (“Because Rule 23(f)’s time limitation is found in a procedural rule, not a statute, it is
properly classified as a nonjurisdictional claim-processing rule.”); Hamer v. Neighborhood
Hous. Servs. of Chicago, 138 S. Ct. 13, 17 (2017) (“Only Congress may determine a lower

Even in the context of congressional legislation, any intent to limit a federal court’s jurisdiction must be
clearly expressed—Rule 45 plainly contains no mention of subject-matter jurisdiction. See Fort Bend Cty., Texas v.
Davis, 139 S. Ct. 1843, 1850 (2019) (“The Court has therefore stressed the distinction between jurisdictional
prescriptions and nonjurisdictional claim-processing rules, which seek to promote the orderly progress of litigation
by requiring that the parties take certain procedural steps at certain specified times.” (citation omitted)); Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) (“We inquire whether Congress has clearly stated that the rule is
jurisdictional; absent such a clear statement, we have cautioned, courts should treat the restriction as
nonjurisdictional in character.” (cleaned up)).
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federal court’s subject-matter jurisdiction.”). Joffe’s theory therefore rests on an elementary
error.
Joffe’s argument also makes little sense even within the specific context of Rule 45.
Under Rule 45, which was amended in 2013, a subpoena to a non-party “must issue from the
court where the action is pending.” Fed. R. Civ. P. 45(a)(2). To conclude that this Court lacks
authority to modify a subpoena issued in its name—when all interested parties have submitted—
is, quite frankly, absurd.4 Unsurprisingly, none of Joffe’s citations supports his argument. In
Wartluft v. Protect the Hersheys’ Children, Inc., the district court concluded that it lacked
subject-matter jurisdiction over a subpoena dispute because it was neither the issuing court nor
the forum of compliance. 2017 U.S. Dist. LEXIS 108128, *2 (S.D.N.Y. July 11, 2017). The
remaining two cases cited by Joffe each concerned a district court’s lack of jurisdiction over
subpoenas issued by other courts prior to the 2013 amendment. See In re Digital Equip. Corp.,
949 F.2d 228, 229 (8th Cir. 1991) (appeal of District of South Dakota’s ruling on subpoenas
issued by District of Oregon); KGK Jewelry LLC v. ESDNetwork, No. 11-CV-9236, 2014 WL
1199326, at *1–2 (S.D.N.Y. Mar. 21, 2014) (finding lack of jurisdiction in the Southern District
of New York over subpoenas originally issued by the Districts of Rhode Island and New
Hampshire).5

It may well be the case that the Court would have been required to deny any request to quash or modify the
subpoena had Joffe timely raised his objection that any such motion must be filed in the district of compliance, but a
mandatory dismissal does not connote a lack of subject-matter jurisdiction. See Davis, 139 S. Ct. at 1850 (“A claimprocessing rule may be ‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly raise[s]’ it.
But an objection based on a mandatory claim-processing rule may be forfeited ‘if the party asserting the rule waits
too long to raise the point.’” (quoting Eberhart v. United States, 546 U.S. 12, 19 (2005))).
4

To be sure, the magistrate judge in KGK Jewelry appears to describe Rule 45 as conferring exclusive
jurisdiction on the court for the district of compliance; the Court disagrees with that interpretation for the reasons
already stated.
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In sum, the Court is satisfied that it has subject-matter jurisdiction over this subpoena
dispute, regardless of Rule 45’s procedural requirements, and Joffe has failed to identify any
controlling law overlooked by this Court.
2. Non-Party Witnesses’ Lack of Formal Motion
Joffe’s subject-matter jurisdiction argument notwithstanding, he does not otherwise
appear to dispute that he has waived any argument that Moss and Fine were required to file a
formal motion, particularly in the District of Utah or the Eastern District of Pennsylvania. See
Joffe Br. at 11. That argument was waived once Joffe and Moss’s and Fine’s counsel jointly
requested—on multiple occasions no less—that the Court resolve their dispute via
teleconference. There is no doubt that, had the Court ruled during either of the teleconferences
on this issue in Joffe’s favor and directed that Moss and Fine appear for in-person depositions,
Joffe would have accepted the Court’s ruling, rather than demand more briefing and additional
suits in other districts. That Joffe insists on formal briefing in another district only after
receiving an adverse ruling from this Court smacks of forum-shopping and gamesmanship.
District courts, including the undersigned on prior occasions in this case, routinely resolve
discovery disputes orally or via summary orders without formal briefing when the issue is
straightforward and does not warrant further time, expense, and delay. Accordingly, Moss’s and
Fine’s failure to commence a formal petition to quash or modify Joffe’s subpoenas, whether in
this district or elsewhere, is not a basis to grant reconsideration.6

The Court further notes that nothing in Rule 45 requires a formal motion. See Fed. R. Civ. P. 45(d)
(allowing subpoenaed party to serve written objection as alternative to motion to quash); Bounkhoun v. Barnes, No.
15-CV-631A, 2019 WL 3927263, at *1 (W.D.N.Y. Aug. 20, 2019). Construing Rule 45’s requirement that a motion
be commenced in the district of compliance as waivable is also consistent with the procedural requirement’s
purpose, which is to protect the non-party’s interest “in obtaining local resolution” of any subpoena-related motions.
See Fed. R. Civ. P. 45, 2013 amend., subdiv. (f). In the context of this case, requiring Moss and Fine to commence
an action to challenge Joffe’s subpoenas in Pennsylvania or Utah, only to have the opportunity to consent to a
transfer back to this Court under Rule 45(f) for a ruling on the merits, creates unnecessary expense and delay for
everyone with no conceivable benefit. Finally, the Court notes that district courts retain “inherent power . . . to
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3.

Undue Burden

The record before the Court adequately demonstrates that requiring Moss and Fine to
appear for in-person depositions would constitute an undue burden. To determine whether
Joffe’s demand for in-person testimony is unduly burdensome, the Court must weigh the
importance and utility of the in-person format against the hardship imposed. See Aristocrat
Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 299 (S.D.N.Y. 2009)
(describing a balancing test to determine whether undue burden exists). Courts in this circuit are
particularly sensitive to burdens imposed on non-parties. SEC v. Archer, No. 16-CV-3505, 2018
WL 3424449, at *2 (S.D.N.Y. July 2, 2018) (“Within this Circuit, courts have held nonparty
status to be a ‘significant’ factor in determining whether discovery is unduly burdensome.”
(citation omitted)).
As a starting point, the Court reiterates that Moss’s and Fine’s testimony is not likely to
be central to the trial. Hearing Tr. (Mar. 17, 2020) (Dkt. 231) (“Having gone through summary
judgment briefing, I don’t recall any of these people being major players in any way, shape, or
form in this case.”). Joffe was also aware of both Moss and Fine from his working relationship,
and he chose not to depose either one before the original close of fact discovery, despite
deposing multiple other K&S partners. The Court also cannot ignore that Moss and Fine are
merely two out of ten K&S partners who may testify at trial on substantially the same topics—
the possibility of cumulative testimony is therefore significant. To the extent that their
perceptions of Joffe were central to the firm’s decision to remove Joffe from partnership track

protect anyone from oppressive use of process.” See Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 606 (D.D.C 1969);
see also Newmark v. Abeel, 106 F. Supp. 758, 759 (S.D.N.Y. 1952) (explaining that district court “has inherent
power to take appropriate steps to protect against” misuse of subpoena process).

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and ultimately terminate him, that fact almost certainly would have emerged from the
depositions of the other partners at K&S.
The likely marginal utility of Moss’s and Fine’s testimony is further eroded by the
limitations created by Joffe’s proposed deposition format. Joffe has made two arguments as to
why an in-person deposition is critical: he wants to observe the witnesses’ demeanor to assess
credibility, and he wants to question them in a setting similar to trial. In the Court’s prior order,
the Court assumed—in Joffe’s favor—that the witnesses would not be wearing masks during
their depositions, due to his professed desire to be able to observe their demeanor. Joffe now
says that the witnesses may wear masks during the depositions, which would literally obstruct
Joffe’s view of their demeanor. Compounding the mask-wearing is the fact that the witnesses
would be sitting at least six feet away from Joffe, which further interferes with his opportunity
for careful observation. While the Court does accord some deference to Joffe’s personal
experience and preferred method of examination (and his professed interest in monitoring eyecontact with the witnesses), there can be no question that mask-wearing and distancing
significantly diminish the value of in-person testimony and substantially close the gap between
in-person and video depositions. Moreover, if the witnesses were to wear masks during the
depositions, Joffe would lose the ability to approximate the trial experience; the Court is highly
unlikely to allow trial witnesses to testify in court with a face covering.
Given the minimal utility of the in-person format, the non-party witnesses’ obligation to
show undue burden is accordingly reduced. See Kirschner v. Klemons, No. 99-CV-4828, 2005
WL 1214330, at *2 (S.D.N.Y. May 19, 2005) (“A subpoena that pursues material with little
apparent or likely relevance to the subject matter, however, is likely to be quashed as
unreasonable even where the burden of compliance would not be onerous.” (citation omitted)).

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While an affidavit as to burden is generally required and could provide further support for a
modification of Joffe’s subpoenas, the undisputed facts before the Court make further inquiry
unnecessary.
Based on the record before the Court, in-person depositions pose a significantly greater
risk of COVID-19 transmission than a remote deposition.7 Here, the in-person depositions
would require multiple individuals residing in different parts of the country to travel—including
by air—and to then congregate and converse in an indoor setting for several hours before
dispersing back to their homes and families. Joffe is based in New Jersey, while the attorneys
who will be defending the depositions are based in New York. The depositions are noticed for
Salt Lake City, Utah and Bethlehem, Pennsylvania. While Joffe may be willing to risk infection
aboard a domestic flight to Utah or travel 90 miles to Bethlehem during these pandemic
conditions, the non-party witnesses are understandably wary of being exposed to COVID-19 by
Joffe, their attorneys, the court reporter, or others with whom they may have contact during the
process of going to or from the deposition. Joffe contends that Proskauer need not be in physical
attendance if Moss and Fine are genuinely concerned about their health. Joffe Br. at 25. With
due respect to Joffe’s proposed solution, forcing witnesses to choose between their health and
their attorney being on an equal footing with Joffe is itself a burden.
As explained in the Court’s memo endorsement, the Court disagrees with Joffe’s
suggestion that the partial reopening of the economy means that the witnesses no longer face

Courts in this circuit have been cognizant of the risks of in-person testimony and have encouraged remote
depositions as a matter of course. See Astor Chocolate Corp. v. Elite Gold Ltd., No. 18-CV-11913, 2020 WL
2130680, at *12 n.8 (S.D.N.Y. May 5, 2020) (“The Court expects that, given the challenges presented by the current
COVID-19 pandemic, such deposition likely will be conducted remotely; and that counsel will collegially agree on
the mechanics of a deposition without the need for Court intervention.”); see also City of Almaty, Kazakhstan v.
Sater, No. 19-CV-2645, 2020 WL 2765084, at *3 (S.D.N.Y. May 28, 2020) (“To the extent there are concerns about
safety amid the COVID-19 pandemic, this Court already has encouraged the taking of depositions remotely by
video.”).
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health risks. Whether to reopen the economy and to loosen the related public health restrictions
is a complex policy decision that is not guided solely by health and safety considerations. The
Court does not purport to judge the wisdom of state and local governments’ reopening decisions.
What remains clear is that the unique health risks posed by COVID-19 are as present today as
they were in May: it is a potentially fatal illness with the ability to spread through asymptomatic
or pre-symptomatic carriers, with no approved cure, treatment, or vaccine, and unlike in other
countries, new cases here are plateauing (or, in some areas, rising) rather than plummeting.8
While the Court acknowledges that cases in New York have declined significantly, both of the
proposed depositions contemplate interstate travel, and the Court is not aware of any suggestion
from New York authorities that residents should not continue to minimize in-person, indoor
contact and unnecessary travel.
Joffe’s argument that the Court erred in taking judicial notice of basic facts about
COVID-19’s spread is misplaced. Since the onset of the pandemic, courts in this circuit have
routinely taken judicial notice of the likely risks and severity of COVID-19 and the potential
efficacy of mitigation measures.9 In its memo endorsement, the Court cited to an academic
article for the uncontroversial proposition that the minimum distance to prevent transmission of
COVID-19 may vary depending on environmental conditions—and that the oft-repeated six-feet
Joffe contends that the Court should allow further inquiry into Moss’s and Fine’s individualized
circumstances, perhaps by examining their health conditions and social distancing practices or that of their families.
Such an inquiry is unnecessary because, even if the witnesses or their families are neither elderly nor have
comorbidities, the Court would nonetheless conclude that the increased risk of contracting COVID-19 from an inperson deposition is sufficient to outweigh the limited utility that Joffe would derive from his proposed in-person
questioning. There is no doubt that COVID-19 is potentially a serious illness even for young people without
underlying conditions. Probing Moss’s and Fine’s daily habits also bears little relation to the increased risk of
COVID-19 transmission posed by in-person depositions.
8

See, e.g., United States v. Williams-Bethea, No. 18-CR-78, 2020 WL 2848098, at *4 (S.D.N.Y. June 2,
2020); Graham v. Decker, No. 20-CV-2423, 2020 WL 1847568, at *4 (S.D.N.Y. Apr. 13, 2020); Basank v. Decker,
No. 20-CV-2518, 2020 WL 1481503, at *3 (S.D.N.Y. Mar. 26, 2020); United States v. Gileno, No. 19-CR-161,
2020 WL 1307108, at *4 (D. Conn. Mar. 19, 2020).
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rule may not be sufficient in a high-risk environment, such as an indoor setting with prolonged
exposure.10 Joffe claims that the proposition is not suitable for judicial notice because it
contradicts the CDC, whose “gold-standard” publications are appropriate for judicial notice.
Joffe Br. at 22. The critical flaw in his argument is that the Court’s observation is consistent
with and follows from CDC guidelines. CDC guidelines do not suggest that the coronavirus
magically decomposes or hits an invisible wall after traveling six feet in the air. Rather, the
CDC has made clear that a distance of six feet is the minimum requirement, that greater
separation reduces risk of transmission further, and that risk of infection increases with
prolonged indoor interaction.11 In other words, even if the Court agreed not to take judicial
notice of the Science article and instead relied purely on CDC guidance (to which Joffe has no
objection), the Court would reach the same conclusion: Joffe’s proposed social distancing does
not guarantee a safe deposition environment.12
In sum, the Court concludes that the record adequately demonstrates that in-person
depositions of Moss and Fine—deposition which would not have been allowed at all but for the
pandemic-related adjournment of trial—would impose an undue burden during these

Dkt. 239 (citing Kimberly A. Prather et al., Reducing transmission of SARS-CoV-2, Science (May 27, 2020)
(“Increasing evidence for SARS-CoV-2 suggests the 6 ft CDC recommendation is likely not enough under many
indoor conditions where aerosols can remain airborne for hours, accumulate over time, and follow air flows over
distances further than 6 ft.”), https://science.sciencemag.org/content/early/2020/06/02/science.abc6197.1.).
10

“To practice social or physical distancing stay at least 6 feet (about 2 arms’ length) from other people.”
Social Distancing, Ctrs. for Disease Control and Prevention (May 6, 2020), https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html (emphasis added). “In general, the more closely you interact with
others and the longer that interaction, the higher the risk of COVID-19 spread . . . . Indoor spaces are more risky
than outdoor spaces where it might be harder to keep people apart and there’s less ventilation.” Deciding to Go Out,
Ctrs. for Disease Control and Prevention (June 15, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-lifecoping/deciding-to-go-out.html.
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The Court further notes that it need not accept the truth of the Science article in order to judicially notice
the fact that public health guidelines are rapidly shifting in response to the new virus, and that the efficacy of Joffe’s
preventative measures is far from certain. See Gileno, 2020 WL 1307108, at *4 (“The Court takes judicial notice of
the fact that public health recommendations are rapidly changing.”).
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Case 1:17-cv-03392-VEC-SDA Document 243 Filed 06/24/20 Page 15 of 15

extraordinary times.13 The Court finds no legal or factual error or new evidence that would
compel a different conclusion on reconsideration.
CONCLUSION
For the foregoing reasons, Joffe’s motion for reconsideration is denied. The Clerk of
Court is respectfully directed to terminate the pending motions at docket entries 226 and 240.
All interested parties are directed to proceed with the depositions of Moss and Fine via video
conference no later than July 15, 2020.
SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: June 24, 2020
New York, New York

Joffe also makes the perplexing argument that in-person testimony is appropriate because Rod Rosenstein
testified in person before Congress and because Chief Judge McMahon is willing to preside over a bench trial in
July. Joffe Br. at 19–20. As should be obvious from the above discussion, the Court does not view these
depositions as having comparable importance to Senate oversight of the Department of Justice. Similarly, Judge
McMahon’s magnanimity and willingness to undertake a risk in order to ensure the efficient functioning of her
courtroom do not mean that non-party witnesses are to be held to the same standard. Joffe Br. at 19. Indeed, Joffe’s
discussion of Judge McMahon’s trial procedures is misleading and omits that Judge McMahon’s bench trial is “all
remote”—in that all witnesses are testifying virtually and counsel’s presence is entirely optional. See Trial
Procedures, Ferring Pharmaceuticals Inc. v. Serenity Pharmaceuticals, LLC, No. 17-CV-9922, Dkt. 690 (S.D.N.Y.
May 27, 2020).
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