United States District Court, Southern District of New York
March 19, 2003
AMANDA MASTERS, ET AL., PLAINTIFFS,
WILHELMINA MODEL AGENCY, INC., ET AL, DEFENDANTS.
The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
I write to resolve the two discovery matters that still remain before me.
First, plaintiffs seek to compel answers to certain questions that Dieter Esch, Wilhelmina's 30(b)(6) witness, refused to answer on the grounds of relevance and privilege. The questions in issue sought information concerning whether Wilhelmina had received an opinion letter concerning certain issues and whether it had retained counsel as a result of certain alleged events. I agree with Wilhelmina that the questions are irrelevant to the issue of class certification. Plaintiffs claim that I had previously ruled that the forms of contracts used by the defendants were relevant to class certification, that the questions in issue relate to the forms of the contracts used by the defendants and that the questions are, therefore, relevant. Plaintiffs misapprehend the basis for my prior ruling. The forms of contracts used by defendants are relevant because they bear on the issues of commonality and typicality. If, for example, one of the defendants made substantial changes in the form of its contact every three months, there would be serious concerns regarding whether a class spanning several years would be appropriate. The reasons for any changes, however, are not relevant to class certification; dissimilar contract terms will have a bearing on the issues of commonality and typicality regardless of the reason for the differences in terms.
The second issue arises out of plaintiff's counsel's inadvertent receipt of a sealed portion of a deposition transcript which should have been provided only to Wilhelmina's counsel. It appears that the court reporter who transcribed the deposition erroneously delivered the sealed portion to plaintiff's counsel. Plaintiff's counsel has stated in correspondence to Wilhelmina's counsel that he read only the cover page of the sealed excerpt and that he then replaced it in its envelope as soon as he realized what it was. Wilhelmina's counsel seeks an affidavit from plaintiff's counsel disclosing who, if anyone, read the transcript and stating whether the contents of then excerpt were disclosed to anyone.
Unfortunately, this second dispute appears to be primarily the result of the breakdown in the relationship among counsel in this matter. See generally Hon. Paul F. Friedman, Civility. Judicial Independence and the Role of the Bar in Promoting Both, 2002 Fed. Cts. L. Rev. 4 (2002).
Plaintiff's counsel's letter dated March 17, 2003 constitutes a representation by counsel that he did not read the excerpt and that he has no reason to believe that any member of his staff read the excerpt. If I am misinterpreting plaintiff's counsel's letter, he is directed to clarify his statements forthwith. In the absence of evidence that plaintiff's counsel's representations are untrue, I accept counsel's representations to the Court.
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