Grunberg 77 LLC v. B.R. Guest Parent Holdings, LLC

Filing 140

DISCOVERY ORDER. The parties move by joint letter to resolve three discovery disputes: (a) Plaintiff's refusal to proceed with a Rule 30(b)(6) deposition noticed by Defendants; (b) Defendants' identification of Ernest A. Badway, Esq., as a new witness and their refusal to produce him for deposition; and (c) Plaintiff's refusal to produce Edward J. Phillips, Esq., its lead counsel in this action, for deposition. ECF No. 139, at 1. I find for Defendants on point (a); and partiall y for each party on points (b) and (c). As to (a), damages are a critical issue in this case and a deposition tailored to the topics listed in Defendants' Rule 30(b)(6) Deposition Notice, see id. at 13, will streamline the trial. As to (b), Defendants are correct that Plaintiff's claim on the inadmissibility of Badway's testimony is better left to Plaintiff's motions in limine. On the other hand, I do not find Plaintiff to have waived its right to depose Badway, though deny Plaintiff's request for Defendants to bear the costs of this deposition. Thus, Defendants may call Badway at trial, subject to any rulings on motions in limine, and Plaintiff, at its own cost, may depose Badway before trial. Finally, as to (c), I find-consistent with my comment at the September 27, 2019 status conference-that Defendants are not permitted to depose Phillips. However, as I also stated at that conference, Plaintiff must designate another 30(b)(6) witness competent to testify on the reasonableness of the disputed fees. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 2/12/20) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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GRUNBERG 77 LLC,
Plaintiff,
-against-

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
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DISCOVERY ORDER
17 Civ. 5627 (AKH)

B.R. GUEST PARENT HOLDINGS, LLC, and
359 COLUMBUS AVENUE, L.L.C. (d/b/a
ISABELLA'S),
Defendants.
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AL VINK. HELLERSTEIN, U.S.D.J.:
The parties move by joint letter to resolve three discovery disputes:
(a) Plaintiff's refusal to proceed with a Rule 30(b)(6) deposition noticed by
Defendants; (b) Defendants' identification of Ernest A. Badway, Esq., as a new
witness and their refusal to produce him for deposition; and (c) Plaintiff's refusal
to produce Edward J. Phillips, Esq., its lead counsel in this action, for deposition.
ECF No. 139, at 1. I find for Defendants on point (a); and partially for each party on points (b)
and (c). As to (a), damages are a critical issue in this case and a deposition tailored to the topics
listed in Defendants' Rule 30(b)(6) Deposition Notice, see id. at 13, will streamline the trial. 1 As
to (b), Defendants are correct that Plaintiff's claim on the inadmissibility of Badway's testimony
is better left to Plaintiff's motions in limine. On the other hand, I do not find Plaintiff to have
waived its right to depose Badway, though deny Plaintiff's request for Defendants to bear the
costs of this deposition. Thus, Defendants may call Badway at trial, subject to any rulings on
motions in limine, and Plaintiff, at its own cost, may depose Badway before trial. Finally, as to

1

I note that Plaintiffs reliance on Presse v. Morel, 10-cv-2730, 2011 WL 5129716 (S .D.N.Y. Oct. 28, 2011) is
misplaced. There, unlike here, the magistrate judge denied a request to depose two individuals on precisely the
same topics, once in their individual capacities, and again as 30(b)(6) witnesses. Here, Defendants seek a 30(b)(6)
deposition on damages because prior depositions did not fully explore damages. See ECF No. 139, at 2-3.

(c), I find-consistent with my comment at the September 27, 2019 status conference-that
Defendants are not permitted to depose Phillips. However, as I also stated at that conference,
Plaintiff must designate another 30(b)( 6) witness competent to testify on the reasonableness of
the disputed fees.

SO ORDERED.

Dated:

February\~, 2020
New York, New York

t)l /4- ·~--;~'AL VIN K. HELLERSTEIN
United States District Judge

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