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The Board of Trustees of the Southern California Ibew-Neca Defined v. the Bank of New York Mellon Corporation

March 24, 2011

THE BOARD OF TRUSTEES OF THE SOUTHERN CALIFORNIA IBEW-NECA DEFINED CONTRIBUTION PLAN, ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
THE BANK OF NEW YORK MELLON CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard M. Berman, U.S.D.J.

ORDER

I. Background

By letter, dated March 8, 2011, the Board of Trustees of the Southern California IBEW- NECA Defined Contribution Plan ("Plaintiff") filed an Objection, pursuant to Rule 72(a) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), to United States Magistrate Judge Andrew J. Peck's February 24, 2011 Order ("Order") relating to a Fed. R. Civ. P. 30(b)(6) deposition. (Ltr. to the Ct., dated Mar. 8, 2011 ("Pl. Ltr."), at 3; see Tr. of Conf. before Hon. Andrew J. Peck, dated Feb. 24, 2011 ("Tr."), at 28:18-25 (JUDGE PECK: "[Plaintiff will] tell [Defendant] which, up to, but not greater than, seven topics [Plaintiff] needs somebody else on, and the deposition will take place as soon as possible.").) The Bank of New York Mellon ("Defendant") opposed the Objection by letter dated March 14, 2011. (Def. Ltr. to the Ct., dated Mar. 14, 2011 ("Def. Ltr.").)

Plaintiff argues, among other things, that Judge Peck's Order was "clearly erroneous" because Plaintiff "is entitled to an adequately prepared witness for each of [its] 33 noticed 30(b)(6) topics," rather than the seven topics authorized by Judge Peck. (Pl. Ltr. at 1, 3.)

Defendant counters, that "Plaintiff fails to inform the Court . . . that [Judge Peck's] Order was entered with consent by both parties." (Def. Ltr. at 1.)

In fact, the parties appeared before Judge Peck on February 24, 2011 to resolve their dispute regarding an "unprepared" 30(b)(6) deponent and agreed that Plaintiff would take another 30(b)(6) deposition limited to seven topics (not covered by previous fact witnesses), as follows:

JUDGE PECK: [I]f another 30(b)(6) deposition is to occur . . . which of these [topics] do you still need information on? . . .

PL. COUNSEL: Sir, I understand what the [c]court is suggesting, and if you would like me to evaluate the . . . topics now and do that I will.

JUDGE PECK: . . . I'm thinking somewhere between five and ten . . . . Do you think if we split that baby and say seven, for lack of any more scientific method, that the two of you could then work it out? . . .

DEF. COUNSEL: . . . Seven is a fine number for us.

PL. COUNSEL: Seven is fine. (Tr. at 25-12--26:25 (emphasis added).)

II. Legal Standard

"A magistrate's resolution of pretrial discovery disputes is entitled to substantial deference and may not be disturbed by a District Court in the absence of a finding that the magistrate's determination was 'clearly erroneous or contrary to law.'" Dubin v. E.F. Hutton Grp., Inc., 125 F.R.D. 372, 373 (S.D.N.Y. 1989); see Fed. R. Civ. P. 72(a); Weiss v. La Suisse, 161 F. Supp. 2d 305, 321 (S.D.N.Y. 2001) ("An order is clearly erroneous only when the reviewing court, on the entire evidence is left with the definite and firm conviction that a mistake has been committed" and "[a]n order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.").

An agreement made on the record in open court as a matter of law demonstrates the parties' intent to be bound by the agreement. Francis v. Home Box Office, Inc., No. 04 Civ. 7430, ...


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