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CITY OF NEW YORK v. U.S.A.

United States District Court, S.D. New York


November 2, 2005.

THE CITY OF NEW YORK, Plaintiff,
v.
BERETTA U.S.A., et al., Defendants.

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

MEMORANDUM OPINION

The National Shooting Sports Foundation, Inc. ("NSSFI") and the Sporting Arms & Ammunition Manufacturers' Institute, Inc. ("SAAMII") (collectively the "Witnesses"), non-party witnesses, have moved for sanctions against the plaintiff The City of New York (the "City") for sanctions pursuant to Rule 45 (c) 1, Fed.R.Civ.P.

The underlying litigation in the Eastern District of New York has been hard fought, and the interests of the Witnesses are coordinate with the defendants. The service of subpoenas by the City and their compliance has been the subject of considerable and escalating contention between counsel for the parties.

  Rule 10(b) depositions for the Witnesses were scheduled for August 9, 2005. On August 5, counsel for the Witnesses inquired about the possibility of the cancellation of the depositions in view of a then imminent trial date of September 6. Counsel for the City replied that it intended to hold the depositions. Counsel for the Witnesses prepared his clients for the depositions on a number of specified topics and at a cost of $14,000 in legal fees. On August 9, counsel for the City cancelled the depositions requesting a stipulation as to document authenticity.

  After the trial date was adjourned, counsel for the City sought to again go forward with the depositions, a suggestion opposed on the grounds that the depositions had been cancelled. Counsel for the City proposed an authentication certification which had been suggested by counsel to the Witnesses shortly after the initiation of the subpoena process early in the year.

  It appears that the only purpose of the noticed 30 (b) (6) depositions was to authenticate documents produced.

  Upon evidence that the Witnesses have incurred expenses in the amount of $14,000, it is appropriate under Rule 45 (c) (1) for counsel for the City responsible for the subpoenas to pay the Witnesses $7,000 as a sanction for the fees incurred to prepare for a 30 (b) (6) deposition, which was cancelled at the last moment and the sole purpose of which was document authentication.

  It is so ordered.

20051102

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