Opinion
01 Civ. 2145 (BSJ) (HBP)
November 7, 2002
MEMORANDUM OPINION AND ORDER
I write to resolve two discovery disputes that remain in this matter.
I. Plaintiff's Amended 30(b)(6) Notice
In correspondence dated July 3, 2002, defendant First Dominion Capital, LLC ("First Dominion") seeks a protective order quashing a Notice of Deposition served by plaintiffs pursuant to Fed.R.Civ.P. 30(b)(6) on June 10, 2002. For the reasons set forth below, the motion is denied in all respects.
The notice of deposition in dispute was issued on the basis of my June 4, 2002 Order which, among other things, permitted plaintiffs to serve an amended Rule 30(b)(6) notice limited to five (5) topics (Order dated June 4, 2002, ¶ 7). Plaintiffs subsequently served an amended 30(b)(6) notice which identified the following five (5) topics:
1. FDC's purported designation of A.M. Cosmetics as an Equity Investment in accordance with the operating Agreement, including but not limited to the people involved in making the designation, the criteria involved and the process followed in making the designation;
2. The valuations made by or on behalf of FDC in 1998 and 1999, including but not limited to the valuation methodologies used, the process of reviewing, approving and/or objecting to the valuations and actions taken in response to the valuations by the Underwriting Committee or any other committee or the Board of the FDC;
3. FDC's calculation of the Company Preferred Return, including but not limited to the people involved in making the various calculations, the criteria utilized for identifying the investments to be included in the calculation, the dates on which each such calculation was made, the purposes for which each calculation was made, at whose direction or under whose supervision each calculation was made;
4. The steps taken by FDC since June 2000 to ensure that it has been receiving all current information to which it is entitled about the companies in which it made Equity Investments and related Investment Entities; and
5. The practices and procedures followed by FDC since January 1, 1999 for gathering, filing and utilizing information it receives relating to the Equity Investments and related Investment Entities, including but not limited to the personnel who have been engaged as employees, consultants, independent contractors or otherwise to handle and/or manage the files relating to the Equity Investments . . .
First Dominion argues that the notice of deposition should be quashed because the topics designated in the notice are unrelated to the arguments made by plaintiffs in support of their application to serve the amended 30(b)(6) notice. Thus, First Dominion argues that the notice is beyond the scope of my June 4, 2002 Order.
First Dominion's argument is unconvincing for at least two reasons. First, my June 4, 2002 Order did not limit the subject matter of the topics plaintiffs could designate in their amended notice of deposition. Although I was concerned that the notice of deposition authorized by my Order not be used as a device to re-open discovery in general, the mechanism I chose to achieve this restriction was a limitation on the number of topics rather than a subject matter limitation (see Transcript of Proceedings conducted on May 31, 2002 at 86-87). It was my conclusion at the time that a limitation on the number of subject matters would create more of a "bright-line" test and, hopefully, avoid squabbles over whether a particular topic is in or out of bounds.
Second, even if my June 4, 2002 Order could fairly be read as limiting plaintiffs to the topics raised in their application to serve an amended 30(b)(6) notice, the 30(b)(6) notice actually served does not go beyond those topics. First Dominion claims that my June 4, 2002 Order
allowed plaintiffs to serve a new 30(b)(6) deposition notice as to category (c) of the 07/17/01 Notice. It did not open the door for plaintiffs to serve a notice on any category about which plaintiffs sought to inquire.
Category (c) of the 01/17/01 Notice referred to "the subject of the Equity Investments, including AM Cosmetics." In its motion to this Court seeking leave to serve a new deposition [notice] as to this subject, plaintiffs argued:
Based upon FDC's expert report served on May 1, 2002, Plaintiffs are now able to be sufficiently explicit regarding this 30(b)(6) witness. Plaintiff's seek a 30(b)(6) witness with regard to any valuations FDC indicates may or will be disputed. In short, Plaintiffs seek a 30(b)(6) witness regarding all valuations except those valuations which FDC indicates in writing will not be disputed.
Accordingly, Plaintiffs request permission to serve an amended Notice of Deposition pursuant to Rule 30(b)(6) to make explicit that Plaintiffs seek binding testimony from FDC with regard to the valuations of each Equity Investment as to each Liquidity Event and at the end of the last calender [sic] year, excluding any valuation FDC informs Plaintiffs in writing is not going to be disputed.
(Letter of Adam J. Safer, Esq., dated July 3, 2002 at 3-4). Thus, First Dominion claims the subject areas identified by plaintiffs in support of their application to serve an amended Rule 30(b)(6) notice included the "Equity Investments" and First Dominion' s valuations.
Even if my June 4, 2002 Order were read to limit the scope of permissible topics to these two areas, plaintiff's June 10, 2002 notice of deposition does not go beyond these topics. Topics 1, 4 and 5 of the June 10, 2002 Notice of Deposition, on their face, all relate to the "Equity Investments." Topic 2, on its face, relates to First Dominion's valuations. And, Topic 3 relates to the calculation of "Company Preferred Return," an element of is the valuation of the Equity Investments. Thus, First Dominion's argument that these topics are beyond the scope of my June 4, 2002 is frivolous.
To the extent First Dominion argues that plaintiffs have already taken the deposition testimony of several individuals concerning these subjects, its objection is immaterial. The testimony of a witness noticed as an individual does not bind an entity as a 30(b)(6) witness does. As I previously noted in this case, "[a] deposition pursuant to Rule 30(b)(6) is substantially different from a witness's deposition as an individual. A 30(b)(6) witness testifies as a representative of the entity, his answers bind the entity and he is responsible for providing all the relevant information known or reasonably available to the entity." Sabre v. First Dominion Capital, LLC, 01 Civ. 2145 (BSJ) (HBP), 2001 WL 1590544 at *1 (S.D.N.Y. Dec. 12, 2001), citing 8A Charles A. Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice Procedure § 2103 (2d ed. 1994). See generally United States v. Taylor, 166 F.R.D. 356, 361-62 (M.D.N.C. 1996), accord Paul Revere Life Ins. Co. v. Jafari, 206 F.R.D. 126, 127-28 (D. Md. 2002). Thus, the fact that individually named witness have testified concerning a subject is generally no obstacle to a 30(b)(6) deposition on the same subject.
Finally, to the extent First Dominion objects to the notice on the ground that plaintiff has failed to identify the valuations referred to in Item 2 of the notice, the appropriate remedy is to compel plaintiff to identify those valuations prior to the deposition, not the wholesale quashing of the notice of deposition.
II. Requests for Admissions to Michael A. Montelone
By correspondence dated August 13, 2002, First Dominion seeks an order establishing the genuineness of certain documents, claiming Michael A. Montelone, a defendant joined as aligned with the interests of plaintiffs, has failed to respond adequately to requests for admissions. The documents in issue, designated in requests A.1 through A.3, were unqualifiedly admitted in Montelone's Supplemental Response to the Requests for Admission. Accordingly, no live issue remains with respect to his dispute.
First Dominion's letter dated August 13, 2002 states that plaintiff's have admitted the genuineness of the documents in dispute, and Montelone's Supplemental Response to First Dominion's Requests for Admission adopts plaintiff's responses with respect to Requests A.1 through A.3 without reservation.
To the extent First Dominion attempts to raise issues with other requests for admissions, it has raised these issues for the first time in its reply to Montelone's letter in Opposition. Since new issues may not be raised for the first time in reply, I do not address First Dominion's other issues with respect to the Requests for Admissions served on Montelone. Sigmon v. Parker Chapin Flattau Klimpl, 901 F. Supp. 667, 677 n. 5 (S.D.N.Y. 1995), citing United Sates v. Gigante, 39 F.3d 42, 50 n. 2 (2d Cir. 1994), mod. on other grounds 94 F.3d 53 (2d Cir. 1996) and NLRB v. Star Color Plate Serv., 843 F.2d 1507, 1510 n. 3 (2d Cir. 1988); see also Bonnie Co. Fashions, Inc. v. Bankers Trust Co., 955 F. Supp. 203, 215 (S.D.N.Y. 1997).
III. Conclusion
First Dominion's application to quash the Rule 30(b)(6) Notice of Deposition served on it on June 10, 2002 is denied in all requests. The deposition noticed therein shall proceed on a mutually convenient date within thirty (30) days of the date of this order. Counsel are directed to confer prior to the deposition to ensure that any ambiguities concerning the designated topics are resolved. First Dominion's application for an Order establishing the genuineness of certain documents is denied in all respects.