The opinion of the court was delivered by: Henry Pitman, Magistrate Judge
Plaintiffs' motion to compel the deposition of Josephine Montgomery is granted.
Defendants' principal objection to the Montgomery deposition is their claim that she lacks knowledge pertinent to any issue in the case. However, "an order to vacate a notice of taking [a deposition] is generally regarded as both unusual and unfavorable. . . ." Investment Props. Int'l, Ltd. v. IOS, Ltd., 459 F.2d 705, 708 (2d Cir. 1972). Accord Speadmark, Inc. v. Federated Dep't Stores, Inc., 176 F.R.D. 116, 118 (S.D.N.Y. 1997); Naftchi v. New York Univ. Med. Ctr., 172 F.R.D. 130, 132 (S.D.N.Y. 1997); Arkwright Mut. Ins. Co. v. National Union Fire Ins. Co., 90 Civ. 7811 (KC), 1993 WL 34678 at *2 (S.D.N.Y. Feb. 4, 1993); Polycast Tech. Corp. v. Uniroyal, Inc., 87 Civ. 3297 (CSH), 1990 WL 138968 at *3 (S.D.N.Y. Sept. 20, 1990). As the [ Page 2]
parties seeking to preclude the deposition, defendants bear the burden of proof, see In re Agent Orange Product Liab. Litig., 821 F.2d 139, 145 (2d Cir. 1987); Topo v. Dhir, 210 F.R.D. 76, 77 (S.D.N.Y. 2002), citing Dove v. Atlantic, 963 F.2d 15, 19 (2d Cir. 1992).
Since a deposition witness's knowledge need not be first-hand knowledge in order to be discoverable, see Litton Systems, Inc. v. Am. Tel. & Tel. Co., 700 F.2d 785, 827 (2d Cir. 1983); Naftchi v. New York Univ. Med. Ctr., supra, 172 F.R.D. at 132-33, defendants' contention that Ms. Montgomery did not participate in the investment conversion decision is immaterial. Given plaintiffs' counsel's representation that he has a good-faith belief that Ms. Montgomery has relevant knowledge and given the fact that, even in the absence of such a representation, it is not inappropriate to depose a witness to confirm a claimed lack of knowledge, there really is no legal basis to deny the relief plaintiffs seek. See 8 Charles A. Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice & Procedure § 2037 at 500 (2d ed. 1994) ("A witness cannot escape examination by claiming that he has no knowledge of any relevant facts, since the party seeking to take the deposition is entitled to test his lack of knowledge. . . .").
Counsel are reminded, however, that the purpose of a deposition is to explore the claims and the class definition proffered in the complaint that is currently before the court. The Montgomery deposition is not to be used as a springboard to [ Page 3]
take discovery concerning a potential, but as yet unasserted, class.
Accordingly, for all the foregoing reasons, defendants are directed to produce Ms. Montgomery for deposition in Chicago on a mutually convenient date, such date to be no later than September 15, 2003.
© 1992-2003 VersusLaw ...