United States District Court, S.D. New York
February 11, 2004.
SEMI-TECH LITIGATION LLC, Plaintiff -against- BANKERS TRUST CO., et al, Defendants
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Defendant Bankers Trust Company ("BT"), by letter dated February 5,
2004, seeks an order (a) compelling plaintiff, at its own cost, to
produce two expert witnesses again for depositions, (b) precluding
plaintiff's counsel from instructing those witnesses not to answer
questions in violation of Fed.R.Civ.P. 30(d)(1), (c) requiring
plaintiff to produce any documents in the possession of witness Korn that
were withheld improperly on privilege grounds, and (d) awarding to BT its
costs and attorneys' fees in seeking this relief and retaking the
depositions. Plaintiff, by letter dated February 9, 2004, opposes the
To begin with, plaintiff's counsel in fact directed the two experts not
to answer questions which he thought improper. The basis for the
directions was not privilege. The directions not to answer therefore were
blatant violations of Rule 30(d)(1). Accordingly, plaintiff shall produce
the two witnesses for completion of their depositions on a date, within
the next ten days, mutually agreeable to counsel or, in default of
agreement, fixed by the Court. Plaintiff's counsel shall not direct the
witnesses not to answer any questions except as permitted by
Rule 30(d)(1). Plaintiff shall bear all expenses of producing the witnesses
for further examination including any fees payable to the witnesses and
any travel expenses incurred by BT's counsel.
The dispute concerning production of documents arises out of the fact
that proposed expert Korn initially was retained by plaintiff as a
non-testifying consultant, but plaintiff decided in December to designate
him as a testifying expert. Mr. Korn, moreover, testified that he relied
on information that he received from plaintiff prior to the designation
date. Plaintiff nevertheless refused to allow discovery concerning any
communications with Mr. Korn prior to the date on which he was designated
as a testifying expert.
Rule 26(a)(2) requires that an expert's report contain "a complete
statement of . . . the data or information considered by the
witness in forming the opinions" expressed. (Emphasis added) The adverse
party is permitted to probe this matter on deposition. Accordingly, prior
to the resumption of Mr. Korn's deposition, plaintiff shall produce all
data or information considered by him in forming his opinions regardless
of the date on which such data or information came to his attention.
Further, BT is entitled to examine on this subject.
As the Court concludes that there was no substantial basis for the
positions taken by plaintiff, plaintiff shall pay to BT an attorney's fee
of $1,000, which the Court regards as significantly less than the expense
to which plaintiff needlessly put BT in making this application.
Finally, plaintiff's attorney, Kevin Ainsworth, Esq., shall show cause,
on or before February 18, 2004, why he should not be sanctioned pursuant
to Fed.R.Civ.P. 30(d)(3) for directing the witnesses not to answer
questions at their depositions.
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