Amley v. Sumitomo Mitsui Banking Corporation

Filing 59

ORDER with respect to 58 Letter Motion for Discovery. Defendant shall respond to plaintiff's letter-motion no later than January 5, 2021. The response shall be limited to two pages. SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 1/4/2021) (jca)

Case 1:19-cv-03777-CM-BCM Document 59 Filed 01/04/21 Page 1 of 3

PKA Law
Paykin Krieg & Adams, LLP

1/4/2021

2500 Westchester Ave, Suite 107
Purchase, New York 10577
Tel: [phone]

January 4, 2021
By: SDNY ECF
Hon. Barbara C. Moses
Daniel Patrick Moynihan
United States Courthouse
500 Pearl Street
New York, New York 10007
Re:

Ted Amley v. Sumitomo Mitsui Banking Corporation
SDNY Case No. 19-cv-03777-CM

Dear Judge Moses:
Further to the letter-motion of defendant Sumitomo Mitsui Banking Corporation (“SMBC”) to
compel plaintiff’s deposition for an additional seven (7) hours (Dkt. 56), and further to the Court’s Order
relating to same (Dkt. 57), please accept this letter on behalf of plaintiff Ted Amley pursuant to Federal
Rule of Procedure 30(d) for an additional seven (7) hours for the deposition of Mr. Hiro Oshima, which is
scheduled for January 11, 2021.
Rule 30(d)(1) provides, “The court must allow additional time consistent with Rule 26(b)(1) and
(2) if needed to fairly examine the deponent or if the deponent, another person, or any other
circumstance impedes or delays the examination.” Plaintiff requires additional time to fairly examine Mr.
Oshima because, like plaintiff, he is the “key witness” for SMBC. It is indisputable that Mr. Oshima (a) was
plaintiff’s workplace supervisor, (b) occupied a senior position within SMBC’s Legal Department (Deputy
General Counsel); (c) instigated and led the meet and confer at which SMBC conditioned plaintiff’s medical
leave and treatment; (d) formulated and drafted plaintiff’s workplace rehabilitation and attendance plan;
(e) supervised and was the primary point of contact for plaintiff’s compliance with such workplace
rehabilitation and attendance plan and termination; (f) reviewed and supervised plaintiff’s later annual
work performance reviews; (g) interacted with nearly all other witnesses in this matter; (h) drafted or was
copied on nearly all key documents associated with the workplace aspects of this case among SMBC’s
6000 page document production; and (i) made the ultimate decision to terminate plaintiff (or, at the very
least, was the driving force behind it).
In such circumstances, as SMBC notes, additional time is warranted for good cause under Rule 30.
See, e.g., Lapointe v. Target Corp., No. 16-CV-216(GTS/FCH), 2017 WL 1397317 *8 (N.D.N.Y. Mar. 6, 2017)
(additional three hours to explore certain issues); Saeed v. County of Nassau, No. CV 09-3314 (DRH) (AKT),
2011 WL 6945755, at *2 (E.D.N.Y. May 23, 2011) (additional four hours where “Defendants’ argument
centers around the numerous alleged incidents that support Plaintiff’s eleven causes of action, not the
legal claims asserted.”); Arista Records LLC v. Lime Grp. LLC, No. 06 Civ. 5936 (GEL), 2008 WL 1752254, at
*2 (S.D.N.Y. Apr. 16, 2008) (additional four hours where “As a significant executive of the defendant
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PKA Law

company, and a defendant himself, Bildson is a very significant witness in the
case. Plaintiffs point out that he was the custodian or recipient of over 600,000
pages of documents discovered by defendants in response to plaintiffs' demands.”).

As set forth in the transcript of the December 7, 2020 hearing on plaintiff’s discovery motion, I
conditioned plaintiff’s extended deposition on Mr. Oshima’s extended deposition. SMBC conveniently
omits that while I believed I could complete Mr. Oshima’s deposition in one (1) day, I reserved a second
day if needed. My email dated November 25, 2020, which states “that plaintiff also reserves the right to
continue depositions if more than one day is required,” is in no way “oblique”, but rather confirms
plaintiff’s position as to this matter. See Ex. A (November 25, 2020).1 SMBC did not bother to respond or
object to this email for over a month.
There is no burden to SMBC in this regard. SMBC grossly exaggerates the depositions noticed by
plaintiff. Plaintiff never noticed 31 depositions or even considered doing so. The list provided to SMBC
sought to confirm whether the persons listed were still employed by SMBC and within SMBC’s obligation
to make available for deposition. See Ex. B (November 24, 2020 email) (“As discussed last week, please
advise on the status of the following SMBC employees and their availability for depositions.”). In addition,
rather than 70 hours, plaintiff anticipates either 21 or 28 hours total over 3 or 4 days for all 10 deponents.
See Ex. C (December 29, 2020 email) [Mr. Oshima (7 or 14 depending on the Court’s ruling on this motion);
Mr. William Haney (1/2 day); Mr. Matthew Judge (1/2 day); additional seven (7) witnesses on a single
day]. Having reviewed SMBC’s revised document production without redactions, which was produced on
December 31, 2020, plaintiff is reconsidering the need to depose several of the seven (7) persons noticed
for January 18, 2021, which will bring all deposition in under 28 hours total. As SMBC acknowledged in its
December 31, 2020 letter motion, each of the depositions on January 18, 2021 are to be short. See Dkt.
56 n. 3.
Aside from the relevance and materiality of Mr. Oshima’s deposition, by its silence, SMBC waived
its objection to my statement at the December 7, 2020 hearing that I agreed to plaintiff’s deposition over
two (2) days subject to two (2) days of deposition for Mr. Oshima. None of SMBC’s three attorneys
objected or disputed my statement until December 29, 2020. Sang Lan v. AOL Time Warner, Inc., No. 11
Civ. 2870 (LBS)(JCF), 2013 WL 1820289 * 3 (S.D.N.Y. Apr. 30, 2013) (““A valid waiver ‘requires no more
than the voluntary and intentional abandonment of a known right which, but for the waiver would have
been enforceable.’ It may arise by either an express agreement or by such conduct or a failure to act as
to evince an intent not to claim the purported advantage.”) (citations omitted); Schwartz v. Merrill Lynch
& Co., Inc., No. 09 Civ. 900 (WHP), 2010 WL 517585 at *3 (S.D.N.Y. Feb. 8, 2010) (““A party cannot have it
both ways; [she] ‘cannot remain silent, raising no objection during the course of the proceeding, and when
an award adverse to [her] has been handed down, complain of a situation of which [she] had knowledge
from the first ... her silence constitutes a waiver of the objection.’ “).
As time is of the essence, plaintiff waives his right to reply and requests an expedited response
from SMBC, which already has set forth the bulk of its arguments in its letter-motion (Dkt. 56), to no later
than January 6, 2021.
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To the extent SMBC insinuates that I never raised this issue previously, the November 25, 2020 email confirms my
statement at the December 7, 2020 discovery hearing that, “The issue hadn’t come up about Mr. Oshima’s second
day until just now,” which referred to the fact that Mr. Oshima’s deposition had not come up in the hearing during
my turn to speak previously – only plaintiff’s deposition; not that a second day for Mr. Oshima had never been
discussed with SMBC previously.

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For the reasons herein, Plaintiff respectfully requests the Court order an additional seven (7)
hours to fairly examine Mr. Oshima, and such other and further relief as it deems appropriate.

Defendant shall respond to plaintiff's letter-motion no
later than January 5, 2021. The response shall be
limited to two pages. SO ORDERED.

Respectfully submitted,
/s/ Benjamin Suess

_______________________________
Barbara Moses, U.S.M.J.
January 4, 2021

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