Opinion
No. 91 Civ. 2287 (PKL).
January 9, 1995
MEMORANDUM AND ORDER
The defendant in this action, Avon Products, Inc. ("Avon"), has moved for a protective order vacating deposition notices served by the plaintiff, Wertheim Schroder Co. Incorporated ("Wertheim"). A nonparty, Morgan Stanley Co. Incorporated ("Morgan Stanley"), has likewise moved to quash deposition subpoenas served by the plaintiff. Wertheim has cross-moved for an order compelling Avon to produce documents and respond to interrogatories and compelling nonparties Debevoise Plimpton and James D. Wolfensohn Co., Inc. to comply with document subpoenas. Each of these issues will be addressed in turn.
Background
This case arises out of the issuance by Avon of a new series of preferred stock entitled Preferred Equity-Redemption Cumulative Stock ("PERCS") in June 1988. Plaintiff Wertheim, a PERCS holder, alleges that Avon's declaration of two common stock dividends on February 7, 1991, or the subsequent payment of a quarterly dividend on March 1, 1991, triggered the Accelerated Redemption of the PERCS pursuant to the terms upon which the PERCS were issued. Wertheim contends that Avon's alleged failure to comply with the Accelerated Redemption provision constitutes a violation of federal securities laws and a breach of contract.
Wertheim has served notices for the deposition of nine Avon employees: Jules Zimmerman, former Chief Financial Officer of Avon; Edward Robinson, Chief Financial Officer; Ann Scavullo, Vice President-Investor Relations; Nicholas Camera, former Assistant General Counsel; Siri S. Marshal, former General Counsel; Hicks B. Waldron, former Chairman of the Board and Chief Executive Officer; and Hays Clark, Stanley Gault, and Charles Locke, members of the Avon Board. Avon has moved for a protective order precluding the depositions of all of these witnesses.
Wertheim has also served two deposition subpoenas on Morgan Stanley, which was the investment banking firm that advised Avon both on the offering of the PERCS and subsequently on issuance of the common stock dividends. The witnesses sought to be deposed are Joan Young and John Anda. Morgan Stanley has moved to quash the subpoenas on the ground that their testimony would be duplicative.
Wertheim has cross-moved to compel Avon to produce documents responsive to Wertheim's first request for the production of documents and to answer Wertheim's first set of interrogatories. Wertheim has also moved to enforce document subpoenas served on non-parties Debevoise Plimpton, Avon's outside counsel who drafted the terms of the PERCS, and James D. Wolfensohn, Incorporated, another investment banking firm that advised Avon as to the proposed dividend increase and its impact on redemption of the PERCS.
Discussion
A. General Considerations
The scope of discovery under the Federal Rules is quite broad. A party may inquire about anything "relevant to the subject matter involved in the pending action." Fed.R.Civ.P. 26(b)(1). This "has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case."Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 349, 351 (1978).
Nevertheless, discovery is not boundless and a court may place limits on discovery demands.
The frequency or extent of use of the discovery method otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
This case involves a multimillion dollar claim, both parties have substantial assets, and some of the proposed discovery is essential to resolving the issues at stake in the litigation. Hence, all other things being equal, counsel should be given significant leeway in discovery. On the other hand, a substantial amount of discovery has already taken place. Moreover, "permitting unfettered discovery of corporate executives would threaten disruption of their business and could serve as a potent tool for harassment in litigation. Accordingly, where other witnesses have the same knowledge, it may be appropriate to preclude a redundant deposition of a highly-placed executive."Consolidated Rail Corp. v. Primary Ind. Corp., No. 92 Civ. 4927 (PNL), 1993 WL 364471, *1 (S.D.N.Y. Sept. 10, 1993) (citing CBS v. Ahern, 102 F.R.D. 820, 822 (S.D.N.Y. 1984)). It is against this background that specific requests for additional discovery must be measured.
B. Avon Depositions
1. Financial Witnesses
Wertheim seeks to depose Jules Zimmerman, who served as the Chief Financial Officer ("CFO") of Avon at the time the PERCS were issued. Avon claims that although Mr. Zimmerman has knowledge relating to the PERCS, his testimony would be duplicative of that of witnesses who have already been deposed, particularly that of John Donaldson, who was the Vice-President and Treasurer of Avon throughout the entire life of the PERCS and who reported directly to Mr. Zimmerman.
Wertheim alleges that as CFO, Mr. Zimmerman was most directly responsible for Avon's capital structure including the issuance of the PERCS. Wertheim also contends that he was responsible for educating the Chairman of the Board and Chief Executive Officer ("CEO") about the terms of the PERCS. Affidavit of Marc S. Dreier dated Oct. 24, 1994, Exh. 17 at 91. Mr. Zimmerman appears to have made the final decision on the form of the offering that would be presented to the Board of Directors for approval. Dreier Aff., Exh. 18, 19. According to the testimony of Mr. Donaldson, it was Mr. Zimmerman who chose the PERCS proposal of the investment firm of Morgan Stanley Co. ("Morgan Stanley") over other proposals; who had primary contact with Avon's senior management and the Board of Directors about the PERCS; and who was the principal contact with Morgan Stanley. Dreier Aff., Exh. 17 at 35, 91; Exh. 18, 20, 21. Neither the CEO nor Mr. Donaldson can testify as to the communications between Morgan Stanley and Avon because they did not participate. Additionally, since Mr. Donaldson did not endorse the PERCS offering, Mr. Zimmerman's testimony may well differ as to Avon's intentions regarding the offering. Dreier Aff., Exh. 17 at 86-87. Therefore, the deposition of Mr. Zimmerman may go forward.
Wertheim next seeks the deposition of Edward Robinson, the current CFO of Avon, who replaced Mr. Zimmerman shortly after the PERCS were issued. Avon claims that Mr. Robinson's testimony would duplicate that of witnesses who have already been deposed, particularly the testimony of Mr. Donaldson.
Mr. Zimmerman was the CFO involved in the issuance of the PERCS, but Mr. Robinson was the CFO concerned with their redemption. In its answers to Wertheim's interrogatories, Avon identified Mr. Robinson as someone who participated in communications in which the meaning and purpose of the PERCS offering setting forth the redemption terms was interpreted. Answer to Interrogatory No. 9. Avon further stated that:
— Mr. Robinson was involved in decisions concerning the February 7, 1991, dividend declaration (which Wertheim asserts mandated redemption at a higher exchange rate than that which Avon exercised);
— He participated in communications concerning the possibility that the February 7, 1991, dividend declaration might obligate Avon to redeem the PERCS at the higher exchange rate; and
— He was involved in Avon's choice of September 4, 1991, as the date for payment of the $3.00 per share special dividend which Avon claims avoided the need for Accelerated Redemption at the higher exchange rate.
Answers to Interrogatories No. 12, 14, 15.
Mr. Donaldson testified that Mr. Robinson was the person who reached the conclusion that the dividends declared on February 7, 1991, would not trigger Accelerated Redemption. Dreier Aff., Exh. 17 at 134-35. Since this is a key issue in the litigation, Wertheim has the right to know how Mr. Robinson reached this conclusion, and exactly what he told the Special Committee of Avon's Board. In light of the fact that the minutes of the meetings do not reflect the content of Mr. Robinson's comments in detail and that Mr. Donaldson was unable to testify as to the basis for Mr. Robinson's conclusion, Mr. Robinson's testimony is necessary.
The Special Committee was created to advise the Board on alternatives to enhance shareholder value.
Moreover, Mr. Robinson's testimony would not be duplicative of Mr. Donaldson's testimony because, according to Morgan Stanley, it was Mr. Robinson and not Mr. Donaldson who supervised Morgan Stanley's preparation of the Report of the Special Committee which concluded that the dividend increase did not trigger redemption of the PERCS. Dreier Aff., Exh. 17 at 60-62; Exh. 57. Accordingly, Mr. Robinson can be deposed.
Wertheim also seeks to depose Ann Scavullo, the Director of Investor Relations when the PERCS were issued and when they were redeemed. Avon argues that since the Chief Executive Officer already testified about his public comments regarding Avon's financial condition and its restructuring program, Ms. Scavullo's testimony would be duplicative.
Ms. Scavullo's testimony is critical to the allegations that Avon fraudulently misled PERCS investors on February 7, 1991, when it declared an increased dividend without disclosing that it had no intention of honoring the Accelerated Redemption provision. Wertheim purchased additional PERCS based on that declaration. The documents show that Ms. Scavullo received inquiries from investors other than Wertheim on February 7, 1991, concerning the impact of the dividend announcement on the PERCS and whether it triggered Accelerated Redemption. Dreier Aff., Exh. 30. Wertheim contends that these inquiries indicate that there was confusion in the market concerning Avon's intentions, but while Avon responded to individual questions, it did not make a public announcement of its intention not be accelerate redemption of the PERCS until five days later. Consequently, investors allegedly did not have equal access to information: some knew that Avon would not redeem, while others (including Wertheim) did not. Ms. Scavullo conversations with investors on February 7, 1991, are therefore essential in evaluating the allegations of fraud.
Avon argues that Ms. Scavullo spoke with a Wertheim employee on February 7, 1991, and told him that Avon did not believe that the dividend triggered Accelerated Redemption. Nevertheless, Wertheim continued to purchase PERCS. Avon claims that on the basis of that testimony, Wertheim is estopped from claiming that it was misled with regard to its purchases of PERCS after it spoke to Avon. Precisely because there exists some question concerning Ms. Scavullo's conversations with investors (including Wertheim) on February 7, 1991, her deposition is necessary.
2. Legal Witnesses
Wertheim seeks to depose Siri S. Marshall, who served as the Vice President of Legal Affairs when the PERCS were issued, and was appointed Secretary in 1990; and Nicholas Camera, Assistant General Counsel through December of 1990. Ms. Marshall and Mr. Camera were both members of Avon's legal department and were involved in the issuance and redemption of the PERCS. They reviewed drafts of the offering materials and have information concerning how the Accelerated Redemption provision came to be included. Wertheim argues that since they attended every relevant meeting of the Board of Directors, Avon's Finance Committee, and the Special Committee and often served as the secretary at those meetings, they can authenticate the minutes of those meetings. However, Avon has agreed to stipulate to the authenticity of those minutes, and live testimony is not necessary for that purpose.
Wertheim offered to forego Ms. Marshall's deposition if (i) Mr. Camera is produced for deposition, (ii) Avon stipulates to the authenticity and admissibility of the minutes of all meetings that Ms. Marshall recorded as Secretary, and (iii) Avon stipulates not to call Ms. Marshall as a trial witness. Avon has agreed to stipulate to the authenticity of the minutes, but has not addressed the other conditions.
Ms. Marshall's and Mr. Camera's testimony would be duplicative of the testimony of Ralph Arditi, a partner at Debevoise Plimpton, Avon's regular outside counsel, who advised Avon, and who was the principal draftsman of Article IIIB and the Offering Circular which set out the terms of the PERCS. It would also be duplicative of the testimony of James Lurie, of Davis, Polk Wardwell, who advised Morgan Stanley in connection with the issuance of the PERCS, and who was also actively involved in the drafting of Article IIIB and the offering circular. Furthermore, it would be duplicative of the testimony of Thomas Knight, Avon's General Counsel for the entire period relevant to this lawsuit whose testimony Avon has offered and who had a more substantial role than his subordinates with regard to the decision to declare the special dividend and increase the quarterly dividend on the common stock. Declaration of Julie B. Crockett dated Oct. 3, 1994, Exh. 9. Mr. Knight participated in decisions relating to the PERCS and attended meetings of the Board, the Finance Committee, and the Special Committee. Hence, any information concerning discussions at these meetings can be obtained from Mr. Knight. Therefore, the deposition notices for Ms. Marshall and Mr. Camera are quashed.
3. Board Witnesses
Wertheim has next noticed the deposition of Hicks Waldron, Avon's CEO and Chairman of the Board of Directors when the PERCS were issued. Mr. Waldron presided over the meetings of the Board of Directors and its Finance Committee at which the PERCS were discussed and approved. Dreier Aff., Exh. 3, 4, 5, 6. He was the principal contact between Avon and its special consultant on the issuance of the PERCS, Professor Robert Glauber of Harvard Business School. Avon relies on Dr. Glauber's review of the PERCS to support its interpretation. Mr. Waldron set the agenda for Dr. Glauber's review of the proposed PERCS offering, he received Dr. Glauber's report, and he met with him to discuss the proposed offering. Dreier Aff., Exh. 7, 8, 9.
In addition, Mr. Waldron was the chief spokesman on the PERCS after issuance. In the course of several presentations to the investment community he made public statements concerning the purpose of the PERCS and how redemption terms would operate. Dreier Aff., Exh. 12, 13, 14. These statements bear on the main issues in this litigation: the purpose and meaning of the redemption provision and the adequacy of Avon's disclosure of its intentions.
Avon argues that his testimony will completely overlap the testimony of James Preston, the present Chairman and CEO of Avon. However, Mr. Preston testified that he only became President and Chief Operating Officer in May 1988, just prior to the issuance of the PERCS and that before that time he had no real involvement in the management discussions leading up to their issuance. Dreier Aff., Exh. 16 at 11, 17-19. In light of these facts, Mr. Waldron's testimony is important to determining Avon's initial understanding of how the redemption provisions were to work and to establish the context in which Avon determined that the PERCS were necessary. Wertheim asserts that the redemption provisions were either designed to mislead investors as to the appeal of the PERCS or were framed so hastily and recklessly that Avon disregarded the reliance investors would place on the interpretation later rejected by Avon. These assertions underlie Wertheim's fraud claims and it is likely that Mr. Waldron can best address them.
Wertheim's interest in obtaining this information has to be weighed against the burden to Mr. Waldron, who has since retired. Since the issues which Mr. Waldron will address underlie one of the material issues in this litigation, the burden of the proposed discovery does not outweigh its likely benefit. Additionally, Mr. Waldron's testimony is not obtainable from a more convenient source. Therefore, Mr. Waldron may be deposed.
Wertheim has also requested the depositions of Hays Clark, Stanley Gault, and Charles Locke, members of the Special Committee of Avon's Board of Directors that advised the Board in February 1991 that it could increase the dividends on Avon's common stock without triggering Accelerated Redemption by declaring an increase in the quarterly dividend as well as a special dividend, but deferring payment until after September 1, 1991. Wertheim seeks to discover exactly what information was presented to the Special Committee which led it to that conclusion and how each Committee member reacted to that information. However, Wertheim has already taken the testimony of the other three members of the Special Committee, and a party has no absolute right to depose every person who has discussed a subject, even if that subject is central to the litigation. Additionally, Wertheim will discover exactly what information was presented to the Special Committee when it deposes Edward Robinson, who made the presentation.
Wertheim nevertheless demands these three further depositions to disprove Avon's argument that the terms of the PERCS were clear. However, the court has already found that the language of the Accelerated Redemption provision is ambiguous as to whether the declaration of February 7, 1991 or the subsequent dividend payment on March 1, 1991 triggered the Accelerated Redemption provision. Wertheim Schroder Co. Inc. v. Avon Products, Inc., No. 91 Civ. 2287 (PKL), 1993 WL 126427, at *6 (S.D.N.Y. April 1, 1993) (denying summary judgment). In addition, the discovery already taken shows that the Special Committee members did not have a single understanding of the terms of the PERCS. Marc E. Leland, a member of the Special Committee testified that the declaration of an increased dividend would trigger the Accelerated Redemption provision. Dreier Aff., Exh. 27 at 149-50. On the other hand, Joseph A. Rice, the Chairman of the Special Committee, testified that only payment of an increased dividend would do so. Dreier Aff., Exh. 23 at 21-22.
Wertheim did offer to limit itself to deposing only one of these Special Committee Members so long as Avon stipulates not to call as a trial witness any Special Committee member who has not been deposed. Avon did not responded to this suggestion.
Finally, the burden to each of the potential deponents is substantial. Mr. Clark is 75 years old, retired, and resides for part of the year in Florida. Mr. Locke is 65 years old, retired, and resides in Illinois. Mr. Gault is the Chairman and CEO of Goodyear Tire and Rubber Company and resides in Ohio. His executive responsibilities are significant and time consuming. Any marginal value that Wertheim might obtain from their testimony is overborne by the burden to these individuals. Additionally, the travel time and costs associated with taking testimony from out of state witnesses weighs against Wertheim. Therefore, none of these witnesses need be produced.
Avon, however, shall not be permitted to utilize these persons as witnesses at trial.
C. Morgan Stanley Witnesses
Morgan Stanley, the investment bank that advised Avon in the issuance of the PERCS, now moves to quash subpoenas served on two of its employees, Joan Young and John Anda. Morgan Stanley contends that these depositions would be duplicative of others already taken, and it argues that because it is a non-party, the Court should be especially sensitive to any burden that would be imposed upon it.
The courts have not spoken with a single voice on the question of whether discovery requests directed to nonparties should be treated differently from those addressed to parties and, if so, in what respects. On one hand, courts often state that the obligations of a nonparty under Rule 45 of the Federal Rules of Civil Procedure are equivalent to the duties of parties responding to discovery under other rules. See Schwartz v. New York City Off-Track Betting Corp., No. 92 Civ. 1166 (KMW), 1993 WL 42760, at *3 (S.D.N.Y. Feb. 11, 1993); Castle v. Jallah, 142 F.R.D. 618, 620 (E.D. Va. 1992). On the other hand, many courts suggest that weight should be given to nonparty status in assessing the burden of compliance. See Katz v. Batavia Marine Sporting Supplies, Inc., 984 F.2d 422, 424 (Fed. Cir. 1993);Jack Frost Laboratories, Inc. v. Physicians Nurses Manufacturing Corp., No. 92 Civ. 9264 (MGC), 1994 WL 9690, at *2 (S.D.N.Y. Jan. 13, 1994).
Certainly, discovery should not simply be denied on the ground that the person or entity from whom it is sought is not a party to the action. The outcome of litigation should not hinge on the fortuity that relevant information is possessed by a non-litigant rather than by a party. A better approach is for the court to take steps to relieve a nonparty of the burden of compliance even when such accommodations might not be provided to a party. For example, while a party is generally expected to bear its own costs of responding to discovery requests, Rule 45(c) (3) (B) (iii) specifically contemplates compensating a nonparty who would otherwise incur substantial expense.
Morgan Stanley's motion can now be measured against these principles. Morgan Stanley argues that Joan Young should not be required to testify because her testimony would be duplicative of that of David Topper, who has already been deposed. Each was a member of the team that advised Avon's Special Committee on the PERCS. However, Ms. Young attended and provided advice at the first meeting of the Special Committee on July 31, 1990, a meeting which Mr. Topper did not attend. Dreier Aff., Exh. 32. Likewise, she made a presentation at the Special Committee's July 3, 1990 meeting, when Mr. Topper was again not in attendance. Dreier Aff., Exh. 24 at 16-18; Exh. 35. Morgan Stanley's assertion that Ms. Young's responsibilities were identical to Mr. Topper's is belied by these facts. Thus, while Mr. Topper may have generally been in the best position to testify about Morgan Stanley's advice on the PERCS, there are gaps in his knowledge that can best be filled by the deposition of Ms. Young. See Polycast Technology Corp. v. Uniroyal Inc., No. 87 Civ. 3297 (CSH), 1990 WL 138968, at *3 (S.D.N.Y. Sept. 20. 1990).
The question remains whether Wertheim should be required to compensate Morgan Stanley. The burden of preparing for a single additional deposition is not substantial, and Morgan Stanley has ample resources. Moreover, Morgan Stanley was not a mere bystander to the transactions at issue; it provided advice about them for which it received compensation. Under these circumstances, Morgan Stanley could reasonably anticipate continuing involvement, whether as a litigant or as a non-party. For these reasons, no shifting of costs is warranted, and Morgan Stanley's motion to quash the subpoena for Joan Young is denied.
Morgan Stanley also argues that any deposition of John Anda would duplicate testimony of John H. Erdman, Jr. Mr. Erdman was the senior member of the Morgan Stanley team that advised Avon at the issuance of the PERCS. He has already testified for two days. The only function exclusively performed by Mr. Anda that Wertheim Schroder has identified was the review of a draft of the offering memorandum. Dreier Aff., Exh. 50. However, the drafts were prepared by Avon or its outside counsel, who have already been deposed. Dreier Aff., Exh. 31 at 41-44; Exh. 47 at 15, 63. Apart from this, the only basis asserted for taking Mr. Anda's deposition is that "Morgan Stanley's insistence that he not be deposed at all reasonably leads Wertheim Schroder to conclude that Mr. Anda may have something important to say." Plaintiff's Memorandum at 24. Based on the record, a more reasonable conclusion is that Mr. Anda has nothing new to say. Accordingly, Morgan Stanley's motion to quash the subpoena served on Mr. Anda is granted.
D. Document Requests and Interrogatories
In its cross-motion, Wertheim seeks to compel production of a variety of documents and answers to interrogatories that it believes are relevant to Avon's motive for allegedly defrauding the PERCS holders.
In Document Request No. 2, Wertheim seeks documents concerning a possible link between a dividend reduction and a tender offer or takeover bid for Avon or a possible link between a dividend reduction and a proxy fight for control of Avon. Avon claims that those requests are not relevant to this lawsuit but has agreed to produce documents responsive to this request. Therefore, this issue need not be addressed here.
In Documents Requests No. 15, 16, and 17, Wertheim demands all documents concerning the interest of Amway, Mary Kay and Jacobs in acquiring Avon. Wertheim asserts that these takeover documents are relevant to its fraud claim against Avon because they would reveal Avon's motive in the issuance of the PERCS and the February 7, 1991, declaration. However, these takeover threats occurred in 1989, after the PERCS were already issued, and well before the dividend declaration in February 1991. Wertheim has not demonstrated any connection between these takeover attempts and the PERCS. In light of the burden on Avon to search for and review these documents which might be of marginal relevance, I shall not require Avon to produce them. See Chemical Bank v. Affiliated FM Insurance Co., No. 87 Civ. 0150 (VLB), 1994 WL 89273, at *2 (S.D.N.Y. March 16, 1994) (where evidence sought would be of only marginal probative value, motion to compel should be denied).
In Document Request No. 18, Wertheim seeks documents relating to a threatened takeover by Chartwell Associates. Wertheim argues that it needs these documents to prove that Avon's fear of a takeover motivated it to increase its dividend even though this would violate the terms of the PERCS. James Preston, the CEO of Avon, testified that Avon did not engage in a share repurchase partly because it would increase Chartwell's percentage in Avon and thus enhance the risk of a takeover. Dreier Aff., Exh. 16 at 189-90. The Special Committee Report also acknowledges Avon's concern with increasing shareholder value without enhancing Chartwell's ability to take control of Avon. Second Amended Class Action Complaint, Exh. B. These documents are relevant to Wertheim's allegations of fraud and they therefore must be produced.
Finally, in Interrogatory No. 6, Wertheim requests that Avon identify all persons who witnessed or participated in any discussions concerning a possible takeover bid or proxy fight for Avon involving Amway, Mary Kay, Jacobs, or Chartwell. For the same reasons that Avon must produce the documents concerning Chartwell, it must also identify all the persons involved in that threatened proxy fight. However, as discussed above, the relevance of the Amway, Mary Kay, and Jacobs takeover threats is dubious, and Avon therefore need not identify the persons who were involved in those potential takeovers.
Discovery requests similar to those addressed above were served by subpoenas duces tecum upon non-parties Debevoise Plimpton and James D. Wolfensohn Incorporated. They shall respond to the same extent required of Avon.
Conclusion
For the reasons set forth above, Avon's notice for a protective order is granted to the extent that the notices of deposition served upon Siri S. Marshall, Nicholas Camera, Hays Clark, Stanley Gault, and Charles Locke are quashed upon the condition that none of these persons shall appear at trial as a witness for Avon. In all other respects, Avon's motion is denied. Morgan Stanley's motion to quash the subpoena for the deposition of Joan Young is denied, but its motion to quash the subpoena for the deposition of John Anda is granted. Wertheim's cross-motion to compel is granted to the extent that Avon shall provide documents responsive to Document Request No. 18 and shall respond to Interrogatory No. 6 with respect to Chartwell only. Non-parties Debevoise Plimpton and James D. Wolfensohn Incorporated shall be subject to the same obligations. The cross-motion is otherwise denied.
SO ORDERED.