United States District Court, S.D. New York
March 10, 2004.
G-I HOLDINGS, INC., Plaintiff, -against-, BARON & BUDD; FREDERICK BARON; RUSSELL BUDD; NESS, MOTLEY, LOADHOLT, RICHARDSON & POOLE; RONALD MOTLEY; JOSEPH RICE; WEITZ & LUXENBERG; PERRY WEITZ and ROBERT GORDON, Defendants
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.
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
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.
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
It is so ordered.
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