agent. District Council claims that it never deposed Agent Tuerack, relying on the Government's representation that almost any testimony Tuerack could offer would be protected by the workproduct privilege. Having barred District Council from obtaining this discovery, District Council argues, the Government should not be permitted to proffer his testimony.
The Government denies that it ever represented to District Council that Tuerack's testimony would consist solely of workproduct. The record supports that position.
The workproduct issue apparently arose during the deposition of Special Agent Karen Worsham of the FBI, when Government counsel directed Worsham not to answer certain questions which sought the Government's workproduct. District Council then moved to compel Worsham's testimony over the Government's workproduct objections.
While that motion was pending before Magistrate Judge Katz, District Council noticed the depositions of several other agents, including Agent Tuerack. The Government sought to defer those depositions until Magistrate Judge Katz reached a decision on the workproduct issue, arguing that "to the extent the District Council intends to pursue with these witnesses lines of inquiry similar to those pursued with Agent Karen Worsham, the same work product issues will arise." Letter from AUSA Zaccaro to Jed Rakoff, dated April 2, 1992, at 1-2. District Council resisted this delay, arguing that "the Government had never represented that the only relevant knowledge in these agents' possession is [workproduct]." Letter from Jed Rakoff to Magistrate Judge Katz, dated April 20, 1992, at 3, *.
The subject of Agent Tuerack's deposition was raised at a discovery conference before Magistrate Judge Katz on August 10, 1992.
District Council proffered a list of uncompleted depositions, which included that of Agent Tuerack. The Government noted that some of the depositions on District Council's list would be unnecessary if Judge Katz denied the motion to compel. The Government expressed its expectation, however, that Agent Tuerack's deposition would go forward whatever the outcome of the motion to compel: "As for Mr. Garay and Mr. Tuerack, they may have some knowledge outside of workproduct. But those would be I think not lengthy depositions." August 10, 1992 Tr. at 63-64.
Indeed, District Council subsequently noticed Agent Tuerack's deposition for October 16, 1992. Apparently, that deposition did not go forward.
There is no support in the record for District Council's contention that the Government made any misrepresentations to the effect that Agent Tuerack's testimony would consist entirely of workproduct. Whatever District Council's reasons for not deposing Agent Tuerack, the blame cannot be laid at the Government's door.
In its reply papers, District Council raises an additional ground for precluding Agent Tuerack's testimony. It alleges that the Government never identified Agent Tuerack as a person with knowledge. Whether or not Agent Tuerack's name was inadvertently omitted from a list of persons with knowledge, the Court has no doubt that this error did not work any prejudice on the defendants. District Council was well aware that Agent Tuerack possessed knowledge, as evidenced by the fact that it noticed his deposition a number of times, and mentioned the need to depose him at the August 10, 1992 discovery conference.
District Council's motion to strike the declaration of Agent Tuerack and preclude his testimony at trial is denied.
B. Salvatore Gravano
District Council also seeks to preclude the testimony of Salvatore Gravano, on the ground that the Government asserted that Gravano would not testify in this matter.
In September 1992, the District Council subpoenaed Gravano for deposition. The Government sought to prevent the deposition, and represented to the Court that it had no intention of calling Gravano as a witness at trial. Nonetheless, the District Council moved to compel his deposition.
At a discovery conference on November 10, 1992, Magistrate Judge Katz ordered that the deposition go forward, but limited the scope of questioning to areas relevant to this litigation. Counsel for the Government then advised the Court that "if the deposition of Gravano does go forward, I would like to make sure that there is no misunderstanding that the government will reserve the right to call Gravano as a witness in the case." November 10, 1992 Tr. at 24-27.
Counsel for defendant Devine expressed concern that the limited scope of deposition could hinder defendants in attacking Gravano's credibility should he testify at trial. Magistrate Judge Katz directed the defendants to proceed on the assumption that Gravano would not be a witness at trial, and advised the defendants that if the Government did elect to call him, they could apply to Judge Haight for greater latitude on cross-examination.
The record is clear that the Government reserved its right to call Gravano prior to his deposition. The District Council cannot rely on a position the Government took earlier that works no prejudice on it. The Government may call Gravano as a witness. In the event it chooses to do so, the defendants may apply to the Court for additional latitude on cross-examination.
C. Armand Valenzi
The District Council seeks to preclude the testimony of Armand Valenzi on the ground that the Government deliberately withheld Valenzi's address, effectively precluding the District Council from deposing him. The District Council charges that its interrogatories requested the names and addresses of all witnesses with relevant knowledge of the allegations made in the supplemental complaint, and while the response included Valenzi's name, it did not include his address. District Council alleges that it made a thorough and diligent effort to locate Valenzi, and then reasonably relied on the fact that the Government did not know how to locate him either. Having misled the defendants as to Valenzi's whereabouts, District Council contends that the Government should be precluded from calling him as a witness at trial.
The Government contends that the reason Valenzi's address was not included in the interrogatory response was because it was unknown. The Government reached Valenzi through his attorney, whose name was provided to District Council in the course of discovery. More importantly, the Government challenges the District Council's assertion that it diligently tried to locate Valenzi. Despite the fact that District Council often sought the Government's assistance in locating witnesses, it never advised the Government that it was having any difficulty locating Valenzi.
The District Council's failure to seek Government assistance in locating Valenzi is striking in light of the fact that it frequently contacted the Government for that purpose. And despite the fact that Valenzi's attorney has agreed to accept a deposition subpoena on behalf of his client, District Council has not tried to notice Valenzi's deposition. On that record, there is simply no basis to preclude Valenzi from testifying at trial.
It is SO ORDERED.
Dated: New York, New York
September 8, 1993
CHARLES S. HAIGHT, JR.