No. 06 Civ.2205 RCC DFE
United States District Court, S.D. New York
April 13, 2007
MEMORANDUM AND ORDER
*1 On April 4, 2007, I received my third Order of Reference in this case. This order came from Chief Judge Wood, who was sitting as the Part I judge that day. She asked me to rule on the discovery dispute outlined in three letters dated March 8, March 8 and March 15 and addressed to Judge Casey, who passed away suddenly on March 22.
The parties were supposed to complete discovery by March 1st. By agreement, they have taken some depositions after that date, but the dispute concerns defendant's desire to take the deposition of Steven Goldstein. Mr. Goldstein was a sales vice president at Langer, Inc., the company which acquired Silipos, Inc. in 2004. He left that employment at about the same time that defendant left the employment of Silipos (in January 2006). Defendant's March 8 letter says:
Mr. Goldstein's testimony is relevant because defendant contends that his [defendant's] termination was part of a business plan by Silipos [and Langer] to terminate senior executives, including Mr. Goldstein and others, to cut costs or for other reasons, and not “for cause,” as alleged by Silipos.... Mr. Goldstein's testimony is also relevant because he worked with defendant Peter Bickel, who had sales and marketing responsibilities at both Silipos and its parent Langer Inc., and Mr. Goldstein can testify to, for example, whether Mr. Bickel performed his job as required, whether he has any knowledge of Mr. Bickel ever being disloyal to Silipos, and whether he has any knowledge of any of the allegations in the complaint against Mr. Bickel.
The second sentence is a weak afterthought. Earlier in the same letter, defendant gave only one reason why he waited until the March 1st cut-off date to say that he would be serving (in the next few days) a deposition subpoena on Mr. Goldstein:
... [T]he need to depose Steven Goldstein only emerged when Silipos' CEO, ... on February 23, improperly refused to answer a question about the reasons for Mr. Goldstein's termination, based on a purported confidentiality agreement entered into by Mr. Goldstein and Silipos upon Mr. Goldstein's termination.
This brings us back to the primary basis for asserting relevance, namely that an exploration of the reasons for terminating Mr. Goldstein would somehow lead to evidence that Silipos must have lacked a good reason for terminating Mr. Bickel. Pursuant to Rule 26(b)(2)(iii), F.R.Civ.P., I find that the burden and expense of a deposition of Mr. Goldstein outweighs its likely benefit. Second, I find that Mr. Bickel has shown no good cause for failing to subpoena Mr. Goldstein by the March 1st deadline for completing discovery. On those two grounds, I hereby quash any subpoena addressed to Mr. Goldstein.
Defendant's March 15 letter asks permission to depose one other person-the pertinent employee of a data forensics company retained by Silipos to recover data that had been deleted from Mr. Bickel's computer. Mr. Bickel's counsel writes:
... [O]n or about February 27, 2007, ... plaintiff produced a highly relevant document purportedly obtained from defendant's computer by an outside data forensics company retained by plaintiff.... On or about yesterday, March 14, 2007, plaintiff produced still more potentially relevant documents concerning the search of Mr. Bickel's computer. In order for these documents to be admitted at trial, an employee of the data forensics company, currently located in Oregon, will need to testify to their authenticity [since Mr. Bickel wishes to contest authenticity].
*2 I hereby direct plaintiff to identify, by April 19, 2007, the lowest-paid employee of the data forensics company who is (a) knowledgeable about the process by which the data was extracted from Mr. Bickel's computer, and (b) able to give a deposition by May 14). I hereby permit defendant to depose that employee for up to four hours, provided that defendant must pay for that employee's time at the same hourly rate that his or her time has been billed to plaintiff. I encourage the attorneys to arrange to have this deposition taken by telephone. If the deponent has to travel to the deposition, then his or her travel costs (including reasonable compensation for travel time) must be paid in advance by whichever party insisted that the deposition not be taken by telephone. The deposition must be completed by May 14, 2007. In all other respects discovery is closed.
In view of Judge Casey's untimely death, I direct the parties to send a joint letter to Chief Judge Wood by April 30, 2007, requesting her to assign a new District Judge at random, or (if both parties wish to sign the enclosed consent form) requesting her to assign this case to me for all purposes pursuant to 28 U.S.C. § 636(c).
End of Document.