Opinion
97 Civ. 2008 (LAK)
October 9, 2002
ORDER
By letter dated October 4, 2002, two attorneys who represented defendants in this action seek a protective order quashing subpoenas duces tecum and ad testificandum served upon them by the plaintiff in connection with plaintiff's effort to enforce the judgment, which remains entirely or substantially unpaid. Although they have not provided copies of the subpoenas to the Court, they assert that the subpoenas seek documents and testimony "regarding non party defendants in this action [who are] defendants in [a] second action commenced by . . . plaintiff, in particular, their formation, structure, organization or financial make-up." They assert that the information sought is privileged and confidential and, in any case, contend that depositions of opposing counsel are at best a last resort.
Plaintiff accepts movants' description of the scope of the subpoenas as far as it goes, but adds that they seek information concerning the timing, methods and means of payments made by defendants and their successors in interest to the lawyers. It disputes movants' other contentions.
This contretemps cannot be taken out of context. In this action, plaintiff obtained a substantial default judgment against defendants only then to be forced into a protracted effort to defeat defendants' subsequent attempt to have the judgment vacated. It was plain to the Court, as it previously made clear, that defendants' actions in seeking to vacate the judgment were fraudulent and that defendants' principal gave false and misleading testimony at the hearing on the motion to vacate. Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 115 F. Supp.2d 367, 369-71, 374 n. 37 (S.D.N.Y. 2000), aff'd in part and remanded, 264 F.3d 62 (2d Cir. 2001), on remand, 174 F. Supp. d 170 (S.D.N.Y. 2001).
Once plaintiff sustained its default judgment, it developed that defendants' business allegedly had been taken over by or transferred to persons related to its former principal, thus making it difficult or perhaps impossible for plaintiff to collect its judgment. The new supposed owners, like the defendants, are represented by the two attorneys upon whom the subpoenas have been served.
Given this turn of events, plaintiff is pursuing two courses. It is going forward with post-judgment enforcement proceedings in this action, in aid of which the subpoenas in question have been served. And it is pursuing a plenary action against the supposed new owners of the business.
To begin with, there is no reason why plaintiff should be deprived of its right to conduct post-judgment enforcement proceedings in this action pursuant to Rule 69 simply because it has brought a plenary action against others. While care ought be taken to coordinate activity and to avoid duplicative proceedings, the Court is advised that the attorneys for defendants and the supposed new owners are insisting in the plenary action that all discovery against the new owners, who are Italian residents, be conducted pursuant to the time consuming, expensive and limited means of the Hague Evidence Convention. The Court assumes, without deciding, that that is their right. But their efforts to stall plaintiff's effort to get at the facts concerning the relationship between the defendants-judgment debtors and the new supposed owners gives them little claim on the favorable exercise of judicial discretion.
The claim of privilege is, at best, unsubstantiated. Insofar as the subpoenas seek to require the production of documents, the proper vehicle for asserting a claim of privilege is a written objection and compliance with S.D.N.Y. Civ.R. 26.2, neither of which exists. Insofar as the subpoenas seek testimony, it is difficult to see how any blanket assertion of privilege could be valid without even knowing what questions will be asked. Moreover, it seems entirely likely that defendants' attorneys are possessed of information that quite clearly would not be privileged, although it is premature now to decide that issue Finally, movants certainly are correct that depositions of adverse counsel are disfavored. But this is not an ordinary situation. For one thing, the lawsuit by plaintiff against defendants already has been decided, so a deposition involves no threat of invading the tactical judgments of opposing counsel, and the attorneys in any case retain the right to object to particular questions on grounds of privilege. Moreover, given the apparently incestuous nature of the relationship among the judgment debtors, the supposed new owners of defendants' business, and the attorneys, as well as the resistance of the supposed new owners to discovery in the plenary action brought against them, there is every reason to suspect that the resistance to the discovery here at issue has more to do with a coverup than with vindicating the privacy of attorneys' work product.
The application to quash the subpoenas and/or for a protective order is denied.
SO ORDERED.