Wei et al v. Rocky Point International LLC

Filing 51

ORDER signed by Judge J.P. Stadtmueller on 6/13/2017 DENYING 46 Defendant's Motion to Quash. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SEAH CHEE WEI,
Plaintiff,

v.

Case No. 16-CV-1282-JPS

ROCKY POINT INTERNATIONAL LLC,
Defendant.

ORDER

This is an action to recover funds which Plaintiff alleges were
fraudulently transferred to Defendant Rocky Point International, LLC
(“Rocky Point”). Presently before the Court is Rocky Point’s motion to
quash Plaintiff’s notices of deposition and subpoenas directed at two
individuals. (Docket #46). The first is Dag Dvergsten (“Dvergsten”), whom
Plaintiff seeks to depose in both his individual capacity and as Rocky
Point’s corporate representative under Federal Rule of Civil Procedure
30(b)(6). (Docket #46-2 at 1–5). The second is James Walden (“Walden”),
Rocky Point’s attorney, whose testimony is sought as to certain topics
identified in Plaintiff’s subpoena. See id. at 6–11.
Dvergsten was already deposed in both his individual and
representative capacities during the course of a similar case currently
pending in the Southern District of Texas involving the same parties and
attorneys. (Docket #47 at 12). As such, Rocky Point claims that Court
authorization is required to take his deposition a second time, pursuant to
Rule 30(a)(2)(A)(ii).
Rocky Point is mistaken. The Rule says that a person may not be
deposed a second time “in the case” without the Court’s permission. Fed.
R. Civ. P. 30(a)(2)(A)(ii). It is plainly confined to successive depositions

occurring in connection with a particular action pending in a particular
judicial district. Whatever degree of identity exists between the parties
and claims in this action and the Texas proceedings, they are not the same
case. Likewise, whether Plaintiff’s counsel “contemplated” during the
prior deposition that it would be used in other jurisdictions is of no
moment. (Docket #47 at 7). The language of the Rule is clear; there has
been no deposition of Dag Dvergsten, individually or as corporate
representative, in connection with this action. See In re Sulfuric Acid
Antitrust Litig., No. 03 C 4576, 2005 WL 1994105, at *2 (N.D. Ill. Aug. 19,
2005) (the Federal Rules should be construed according to their plain
meaning). Thus, Plaintiff need not seek the Court’s leave to take his
deposition. See Collins v. Progressive Mich. Ins. Co., CIVIL ACTION NO. 15cv-13651, 2017 WL 1177684, at *2 (E.D. Mich. Mar. 30, 2017) (deposition in
related state-court action did not bar later deposition in federal action);
Opperman v. Path, Inc., Case No. 13-cv-00453-JST, 2015 WL 5852962, at *2
(N.D. Cal. Oct. 8, 2015) (deposition in prior related federal action was not
in the same “case” for purposes of Rule 30(a)(2)(A)(ii)).1
As to Walden, Rocky Point argues that all of his potential testimony
is privileged under the attorney-client privilege and, moreover, he will be
on vacation on the date that was set for the deposition. (Docket #47 at 5–6).
Plaintiff counters that Walden is a fact witness in this case, as he had
communications with the owner of the Texas entities that transferred
This conclusion means that the Court need not consider Rocky Point’s
argument that leave for Dvergsten’s deposition should be denied because the
second deposition will be largely duplicative of the first, (Docket #47 at 5), or
because Dvergsten’s prior deposition may be used against him in this case,
(Docket #50 at 2–3); Fed. R. Civ. P. 32(a); Fed. R. Civ. P. 804.
1

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funds to Rocky Point. (Docket #49 at 3–4). Specifically, Plaintiff has alleged
that Walden threatened that person with legal action because he believed
that Rocky Point had not received all of the money it was supposed to
have received. See (Docket #32 ¶ 23).
The Court finds Rocky Point’s position unpersuasive. While it may
assert the attorney-client privilege where questioning invades privileged
communications, Plaintiff has identified matters in which Walden is
merely a fact witness. Communications between Walden and the owner of
the Texas entities do not fall within the privilege, as such communications
were not between Walden and his client and did not constitute the
provision of legal advice. See United States v. BDO Seidman, LLP, 492 F.3d
806, 815 (7th Cir. 2007). To the extent Walden has non-privileged
testimony to offer, Plaintiff has a right to obtain it.
Furthermore, the Court takes Plaintiff at his representation that he
is open to rescheduling Walden’s deposition to accommodate Walden’s
vacation. (Docket #49 at 4). The parties will promptly meet and confer to
determine a new, mutually agreeable date for the deposition. The Court
cautions, however, that it will not modify its scheduling order in light of
the rescheduled deposition. The Court’s deadlines were set long ago, see
(Docket #31), and the parties have had ample time to conduct discovery. If
Walden’s deposition needs to be taken before the dispositive motion
deadline, then that should inform the parties’ scheduling discussions.
Finally, the Court will deny Plaintiff’s request for sanctions against
Rocky Point. (Docket #49 at 4–5). First, Rule 30(d), which Plaintiff cites,
only empowers a court to sanction a party after it actually fails to appear

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for a deposition. Fed. R. Civ. P. 30(d)(1)(A). As of the time of Plaintiff’s
request, that had not occurred. Second, Plaintiff’s argument in favor of
sanctions is perfunctory and underdeveloped. He merely seeks to ride the
coattails of the Court’s prior dissatisfaction with Rocky Point. See (Docket
#49 at 4–5). To be clear, both parties in this action would do well to behave
cooperatively in order to ensure the expeditious resolution of this matter.
Thus, the Court finds that the circumstances presented do not warrant the
imposition of sanctions. Fed. R. Civ. P. 37(a)(5)(B) (attorney’s fees cannot
be awarded when a motion to compel discovery is denied if “other
circumstances make an award of expenses unjust”).
Accordingly,
IT IS ORDERED that Defendant Rocky Point International, LLC’s
motion to quash (Docket #46) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 13th day of June, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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