Leibowitz et al v. iFinex Inc. et al

Filing 356

ORDER granting 351 Letter Motion for Discovery; granting 352 Letter Motion for Discovery. The Court is in receipt of Plaintiffs' letter motion to expand the deposition limit to an initial 15 depositions (Dkt. #351-352), Poloniex's o pposition requesting that Plaintiffs be required to exhaust the standard 10-deposition limit before seeking this Court's leave to expand the limit (Dkt. #354), and the B/T Defendants' above response suggesting an expanded limit of 15 deposi tions without leave to request further depositions (Dkt. #355). As the parties are aware, a party seeking depositions beyond the 10 deposition limit prescribed by the Federal Rules of Civil Procedure must request leave of the court. See, e.g., Brunck horst v. Bischoff, No. 21 Civ. 4362 (JPC), 2022 WL 6991285, at *1 (S.D.N.Y. Oct. 12, 2022) (collecting cases). Upon seeking such leave, the Court must weigh many of the standard factors contemplated by Rule 26, including the relevance of the addition al discovery, the burden, and whether additional depositions would be duplicative or cumulative of other discovery. Id. Typically, courts require that parties exhaust the initial limit before seeking further depositions, see, e.g., In re Actos Antitr ust Litig., No. 13 Civ. 9244 (RA)(SDA), 2022 WL 16722235, at *2 (S.D.N.Y. Nov. 5, 2022), but in circumstances where parties agree to an expanded limit or the case otherwise merits more expansive discovery, courts may nonetheless expand the limit prio r to exhaustion, see, e.g., In re Weatherford Int'l Sec. Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 WL 5762923, at *3 (S.D.N.Y. Oct. 24, 2013). The parties are well aware that this is a complicated case, with voluminous discovery. The Court see s no need to underscore the point. (See generally Dkt. #351 & Ex. 2 (discussing theories of case and myriad deponents with relevant information)). That said, the Court is cognizant of the fact that it is difficult to fully assess Plaintiffs' req uest without Plaintiffs having taken any depositions or argued in favor of depositions of specific deponents. (Dkt. #354 at 2-3). Still, Plaintiffs and the B/T Defendants agree that at least 15 depositions are warranted given the needs of this case, even if Poloniex contends that Plaintiffs' request is premature. The Court credits Plaintiffs' prima facie showing of the relevance of taking additional depositions (Dkt. #351, Ex. 2), and finds that the initial deposition limit should be e xpanded to 15 deponents inclusive of 30(b)(6) depositions at this time, considering the history of this case and the information this Court has already reviewed. That being said, Plaintiffs should "think long and hard about who they want to depo se and... depose only those who are really important[.]" San Francisco Health Plan v. McKesson Corp., 264 F.R.D. 20, 21 (D. Mass. 2010). Should Plaintiffs seek further leave of the Court to take additional depositions, the Court will "exami ne any future requests... with increased scrutiny." In re Weatherford Int'l Sec. Litig., 2013 WL 5762923, at *3. This means that Plaintiffs will need to demonstrate that each additional deposition is truly necessary, that it is not cumulati ve or otherwise duplicative of information already gleaned from discovery, and that there is an adequate justification for not including the deponent in this initial group of 15 depositions. As such, Plaintiffs' motion to expand the deposition limit to 15 depositions is GRANTED. The Court will not pass on whether any additional depositions would be warranted at this time, as any such determination is premature. Any additional requests to take depositions will be met with increased scrutiny as discussed in this Order. The Clerk of Court is directed to terminate the pending motion at docketentries 351 and 352. (Signed by Judge Katherine Polk Failla on 5/18/2023) (rro)

Case 1:19-cv-09236-KPF Document 356 Filed 05/18/23 Page 1 of 3

May 17, 2023
BY ECF AND EMAIL
The Honorable Katherine Polk Failla
United States District Court for the Southern District of New York
Thurgood Marshall United States Courthouse
40 Foley Square
New York, New York 10007

MEMO ENDORSED

Re: In re Tether and Bitfinex Crypto Asset Litigation, No. 19 Civ. 9236 (S.D.N.Y.)
Dear Judge Failla:

We write on behalf of the B/T Defendants in response to Plaintiffs’ request for leave to take up
to 15 depositions. (Dkt No. 351.) The B/T Defendants do not oppose Plaintiffs’ motion but
write to clarify a few points:
First, the B/T Defendants consented to allowing Plaintiffs to take up to 15 depositions only as a
compromise in order to avoid burdening the Court with this issue; the B/T Defendants agree with
Defendant Poloniex, LLC that Plaintiffs have not satisfied their burden to demonstrate cause to
exceed the ten-deposition limit set forth in the Federal Rules. (Dkt. Nos. 351-3, 351-5.)
Second, notwithstanding Plaintiffs’ repeated references to 15 “initial depositions” or an “initial
limit” of 15 depositions (Dkt. No. 351), the B/T Defendants have made clear that their agreement
is strictly limited to “a total of 15 depositions – inclusive of any Rule 30(b)(6) depositions,
across all parties and non-parties – and no more.” (Dkt. No. 351-8.)
Third, Plaintiffs state that they anticipate taking Rule 30(b)(6) depositions of “Tether” and
“Bitfinex.” As the B/T Defendants have reminded Plaintiffs, those are trade names, not legal
entities, and therefore not the proper subject of a Rule 30(b)(6) deposition. (Dkt. No. 351-5 at 1
n.1.)
Fourth, the B/T Defendants reject Plaintiffs’ suggestion that Defendants did not promptly engage
with Plaintiffs on depositions. Plaintiffs should have started discussions about exceeding the tendeposition limit long before April 10 if they were serious about deposing anywhere near 46
witnesses. And Plaintiffs could have begun to notice depositions for the witnesses they are sure
to depose even if limited to ten depositions. Instead, Plaintiffs waited until two days ago, May
15, to notice their first deposition (a Rule 30(b)(6) deposition of iFinex Inc).
Respectfully submitted,
/s/ Elliot Greenfield

Case 1:19-cv-09236-KPF Document 356 Filed 05/18/23 Page 2 of 3
The Court is in receipt of Plaintiffs' letter motion to expand the
deposition limit to an initial 15 depositions (Dkt. #351-352), Poloniex's
opposition requesting that Plaintiffs be required to exhaust the standard
10-deposition limit before seeking this Court's leave to expand the limit
(Dkt. #354), and the B/T Defendants' above response suggesting an expanded
limit of 15 depositions without leave to request further depositions (Dkt.
#355).
As the parties are aware, a party seeking depositions beyond the 10
deposition limit prescribed by the Federal Rules of Civil Procedure must
request leave of the court. See, e.g., Brunckhorst v. Bischoff, No. 21
Civ. 4362 (JPC), 2022 WL 6991285, at *1 (S.D.N.Y. Oct. 12, 2022)
(collecting cases). Upon seeking such leave, the Court must weigh many of
the standard factors contemplated by Rule 26, including the relevance of
the additional discovery, the burden, and whether additional depositions
would be duplicative or cumulative of other discovery. Id. Typically,
courts require that parties exhaust the initial limit before seeking
further depositions, see, e.g., In re Actos Antitrust Litig., No. 13 Civ.
9244 (RA)(SDA), 2022 WL 16722235, at *2 (S.D.N.Y. Nov. 5, 2022), but in
circumstances where parties agree to an expanded limit or the case
otherwise merits more expansive discovery, courts may nonetheless expand
the limit prior to exhaustion, see, e.g., In re Weatherford Int'l Sec.
Litig., No. 11 Civ. 1646 (LAK) (JCF), 2013 WL 5762923, at *3 (S.D.N.Y.
Oct. 24, 2013).
The parties are well aware that this is a complicated case, with
voluminous discovery. The Court sees no need to underscore the point.
(See generally Dkt. #351 & Ex. 2 (discussing theories of case and myriad
deponents with relevant information)). That said, the Court is cognizant
of the fact that it is difficult to fully assess Plaintiffs' request
without Plaintiffs having taken any depositions or argued in favor of
depositions of specific deponents. (Dkt. #354 at 2-3). Still, Plaintiffs
and the B/T Defendants agree that at least 15 depositions are warranted
given the needs of this case, even if Poloniex contends that Plaintiffs'
request is premature. The Court credits Plaintiffs' prima facie showing
of the relevance of taking additional depositions (Dkt. #351, Ex. 2), and
finds that the initial deposition limit should be expanded to 15 deponents
inclusive of 30(b)(6) depositions at this time, considering the history of
this case and the information this Court has already reviewed.
That being said, Plaintiffs should "think long and hard about who they
want to depose and ... depose only those who are really important[.]" San
Francisco Health Plan v. McKesson Corp., 264 F.R.D. 20, 21 (D. Mass.
2010). Should Plaintiffs seek further leave of the Court to take
additional depositions, the Court will "examine any future requests ...
with increased scrutiny." In re Weatherford Int'l Sec. Litig., 2013 WL
5762923, at *3. This means that Plaintiffs will need to demonstrate that
each additional deposition is truly necessary, that it is not cumulative
or otherwise duplicative of information already gleaned from discovery,
and that there is an adequate justification for not including the deponent
in this initial group of 15 depositions.

Case 1:19-cv-09236-KPF Document 356 Filed 05/18/23 Page 3 of 3
As such, Plaintiffs' motion to expand the deposition limit to 15 depositions
is GRANTED. The Court will not pass on whether any additional depositions
would be warranted at this time, as any such determination is premature.
Any additional requests to take depositions will be met with increased
scrutiny as discussed in this Order.
The Clerk of Court is directed to terminate the pending motion at docket
entries 351 and 352.
Dated:

May 18, 2023
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE