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SEMI-TECH LITIGATION LLC v. BANKERS TRUST CO.

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

ORDER

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 application.

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. Page 2

  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.

  SO ORDERED.

20040211

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