United States District Court, S.D. New York
November 2, 2005.
THE CITY OF NEW YORK, Plaintiff,
BERETTA U.S.A., et al., Defendants.
The opinion of the court was delivered by: ROBERT SWEET, District Judge
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,
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
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.
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