Opinion
05 Civ. 1286 (CSH).
February 24, 2005
MEMORANDUM AND ORDER
Having considered the most recent submissions of counsel, the Court directs that Richard Desmond come to New York to be deposed on March 7, 8, or 9, 2005, or on such other date as may allow the transcript of his deposition to be available by March 14, when the evidentiary hearing on plaintiff's motion for a preliminary injunction will begin.
I cannot accept the contention of defendants' counsel that Mr. Desmond "has nothing to add" to the issues determinative of plaintiff's right to interlocutory relief, viz, the uniqueness of Nicola McCarthy's services as editor of plaintiff's magazine, and the alleged misappropriation by Ms. McCarthy of plaintiff's trade secrets (presumably for the benefit of the corporate defendants). King letter dated February 24, 2005 at 1-2.
Counsel's protestation is undermined by at least two considerations. First, counsel identifies Mr. Desmond as "the sole beneficial owner of the large group of companies of which the corporate defendants are part." Id. at 1. Second, the e-mails salvaged by plaintiff or produced in discovery make it plain that Mr. Desmond played an important role in encouraging Ms. McCarthy to leave plaintiff's employ and arranging the manner in which that would be done. The latter circumstance is not surprising, since as the sole beneficial owner of the corporate defendants it is Mr. Desmond who will profit from Ms. McCarthy's return to the Northern Shell fold as the editor of a new American publication, rather than the salaried employees who defendants offer as the only witnesses to be deposed. Mr. Desmond's seemingly determined efforts (as revealed by the e-mails) to persuade Ms. McCarthy to break her contract with plaintiff and to engage her as the editor of an American magazine of the same sort as and in direct competition with plaintiff's magazine may very well be probative of Mr. Desmond's opinion concerning the unique value of Ms. McCarthy's services to him as the editor of his magazine, and by logical extension to plaintiff as the editor of plaintiff's competing magazine. Nor is it difficult to imagine that Mr. Desmond would have an interest in acquiring plaintiff's trade secrets in respect of publishing such a magazine in the American market, virgin territory for Mr. Desmond and the companies he owns, and controls, and from whose activities he profits. Plaintiff is entitled to question Mr. Desmond on that aspect of the case as well.
I am not persuaded that Mr. Desmond's commitments in the U.K. listed in counsel's letter at 5 n. 4 prevent him from coming to New York for a deposition that should not take more than a day. Of course, I accept and am suitably impressed by counsel's representation at 5 n. 3 that Mr. Desmond is "an influential public figure in the U.K., regularly involved," inter alios, with "many political leaders, including the Prime Minister," but I do not find in the schedule in n. 4 any meetings at 10 Downing Street or Chequers. Given the exigencies of time, the presence of relevant files in New York, and the presence in New York of counsel who must prepare for an expedited hearing in this Court, it is not feasible to arrange a deposition of Mr. Desmond in the U.K. or by some electronic or other means. There is no inherent unfairness in this, since the record to date shows that the defendants' conduct had as its purposes the luring of a New York publishing company's magazine editor away from its employ in order to start up a competing magazine in New York. Such conduct has consequences, and one of them is that Mr. Desmond must come to New York to be deposed in connection with the almost inevitable lawsuit in New York that followed.
Mr. Desmond was certainly aware of the likelihood of this action. On January 22, 2005, Ms. McCarthy sent an e-mail to Paul Ashford, with a copy to Mr. Desmond, which said in part: "Maninder and Dennis will need to advise me on what to say re legal issues — I will be asked about Wenner's attempt to get an injunction preventing me from working for OK!" Mr. Desmond replied to Ms. McCarthy by e-mail the next day, with the succinct but approving message: "That's gooooood xx."
For the foregoing reasons, I hold that plaintiff is entitled to take Mr. Desmond's deposition in New York prior to the hearing. In fairness, I should add that while the Court cannot physically compel Mr. Desmond's attendance, the Federal Rules of Civil Procedure provide sanctions for non-compliance with a discovery order, and the fact finder also has the discretionary power to draw an adverse inference of fact from a party's failure to produce a witness within its control and with knowledge potentially useful to an opposing party's claim or defense.
The foregoing is SO ORDERED.