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United States District Court, S.D. New York

March 10, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


In a letter to the Court dated October 1, 2003, counsel for plaintiff G-I Holdings, Inc. ("Holdings") requested a conference pursuant to Local Rule 37.2 to consider its request that it be permitted discovery concerning the alleged recantation of testimony of former employees of defendant Baron & Budd. Although no conference was scheduled, the letter will be treated as a motion to compel discovery. Following an exchange of letters between the parties, the motion was deemed submitted on October 22, 2003. For the reasons set forth below, Holdings' request for discovery concerning the alleged recantations is denied.

The facts discussed herein are discussed in greater detail in G-I Holdings v. Baron & Budd, 02 Civ. 0216, 2004 WL 374450 (S.D.N.Y. Feb. 27, 2004) ("Holdings VI"); G-I Holdings v. Page 2 Baron & Budd, 218 F.R.D. 409 (S.D.N.Y. 2003) ("Holdings V"); G-I Holdings v. Baron & Budd, 213 F.R.D. 146 (S.D.N.Y. 2003) ("Holdings IV"); G-I Holdings v. Baron & Budd, 02 Civ. 0216, 2002 WL 31251702 (S.D.N.Y. Oct. 8, 2002) ("Holdings III"); G-I Holdings v. Baron & Budd, 238 F. Supp.2d 521 (S.D.N.Y. 2002) ("Holdings II"); and G-I Holdings v. Baron & Budd, 179 F. Supp.2d 233 (S.D.N.Y. 2001) ("Holdings I"), familiarity with which is presumed.

  Holdings alleges that three former Baron & Budd employees — Carmen Valdivia ("Valdivia"), Jesse Zavala ("Zavala"), and Dianne Wickliffe ("Wickliffe") — were caused to recant their testimony by the actions of the defendants Frederick Baron, Russell Budd, and the law firm of Baron & Budd (collectively, the "Baron & Budd defendants"). In particular, Holdings alleges that the recantations of those witnesses were related to their retaining Robert M. Greenberg ("Greenberg") as counsel or, in the case of Zavala, to conversations with Greenberg. At depositions in this action, Greenberg has presented himself as counsel to individual defendants Frederick Baron and Russell Budd. Holdings therefore seeks the depositions of the allegedly recanting witnesses as well as of Greenberg to determine whether their statements made under oath were improper.

  The Baron & Budd defendants argue that each of the discovery requests made by Holdings has previously been rejected by this Court, and that no new circumstances have arisen which should Page 3 compel a different result this time. Holdings has previously requested "that it be permitted to take the depositions of Ms. Valdivia and Mr. Greenberg concerning the facts surrounding Ms. Valdivia's [alleged recantations]." Letter from Holdings to Court, dated Jan. 23, 2003. Holdings requested the deposition of Wickliffe and Greenberg on these same issues in a letter to the Court dated January 30, 2003. The discovery requests in those letters were denied in Holdings IV. Further, more discovery related to Zavala was granted in Holdings V. 218 F.R.D. at 414-15.

  Holdings argues that the discovery it sought in its earlier submissions was focused on the defendants' use of the "Baron & Budd Memorandum," (see Holdings I, 179 F. Supp.2d at 241-2) whereas the current requests concern only the alleged witness recantations. However, the discovery requests related to the Memorandum were not the only ones denied in Holdings IV. See 213 F.R.D. at 148 ("All the other discovery requests not particularly addressed above are denied."). As the Baron & Budd defendants point out with respect to the requests related to Valdivia and Wickliffe, several significant paragraphs from Holdings' discovery requests dated December 11, 2002 and January 23, 2003 are copied verbatim in the present letter request. Because Holdings has presented no compelling reason why the Court should revisit its earlier denials of its discovery requests, they are denied. Page 4

  Holdings' request as to Zavala's alleged recantations is also denied for the separate reason that there is an insufficient basis for Holdings to claim that Zavala's change of position, if any, was related to any contact that Zavala had with Greenberg. Zavala was not represented by Greenberg, and Holdings alleges only that Zavala was contacted by Greenberg more than once, and that Greenberg questioned him concerning his conversations with the investigator hired by Holdings.

  The basis on which to allege that Valdivia, Wickliffe and Zavala have "recanted" is undercut by the fact that the Court has held the affidavit provided by the investigator, on which Holdings draws for the initial accounts of the three employees, is "inadmissible hearsay." Holdings III. 2002 WL 31251702, at *6.


  For the reasons set forth above, Holdings' motion to compel discovery is denied.

  It is so ordered.


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