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Alex & Ani, Inc v. Moa International Corp

December 21, 2011

ALEX & ANI, INC., PLAINTIFF,
v.
MOA INTERNATIONAL CORP., DEFENDANT.



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

ORDER

Defendant MOA International Corp. ("MOA") seeks a protective order to quash various subpoenas and notices of deposition issued by Plaintiff Alex & Ani, Inc. ("Alex & Ani") (Dkt. No. 52.) Specifically, MOA seeks to quash three subpoenas, which were issued to: (1) Oori Trading, Inc. ("Oori Trading"); (2) Ku Tae Yi ("Tae Yi"), President of Oori Trading and Treasurer of MOA;*fn1 and (3) Laurent Cortes ("Cortes"), a salesperson for Oori Trading. MOA also seeks to quash three notices of deposition, which were issued to: (1) James Kim ("Kim"), a former salesperson for MOA; (2) Ku Chol Yi ("Chol Yi"), the founder and President of MOA; and (3) Ku Yang Yi ("Yang Yi"), also known as Ku Yong Yi,*fn2 whom Alex & Ani identified as an individual with the same business address as that of MOA. For the following reasons, the Court denies in part and grants in part MOA's motion for a protective order.

I. Background

A. Subpoenas Issued to Oori Trading, Tae Yi, and Cortes

Oori Trading, an importer and manufacturer of costume jewelry,is a non-party corporation owned and operated by Tae Yi. (Mem. of Law in Support of MOA's Mot. for Protective Order [hereinafter "Def. Mem."] at 6.) Tae Yi is the brother of Chol Yi, MOA's founder and President. (Def.'s Ltr. in Supp. of Req. for Pre-Mot. Conf. to Quash, dated Nov. 16, 2011 [hereinafter "Def. Nov. 16 Ltr."], at 2.) Oori Trading and MOA maintain showrooms at the same location in Manhattan, New York. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for a Protective Order [hereinafter "Pl. Mem."], Ex. A., Decl. of Richard M. Garbarini [hereinafter "Garbarini Decl."] ¶ 3.) Both showrooms occupy one physical space, separated by a "partial petition allowing individuals to go back and forth at will." (Garbarini Decl. ¶ 4.) Alex & Ani states that, according to Cortes, who works in Oori Trading's showroom as a salesperson, Oori Trading and MOA sell the same goods and share sales personnel. (Pl. Mem. at 2.)

On October 28, 2011, Alex & Ani served on Oori Trading a subpoena to produce documents relating to MOA, Oori Trading, and three other entities that Alex & Ani states are "closely related to and perhaps even owned by, MOA." (Pl. Mem. at 3.) On November 16, 2011, Alex & Ani served subpoenas to testify on Tae Yi and Cortes.

B. Notices of Deposition Issued to Kim, Chol Yi, and Yang Yi

Kim is a former salesperson for MOA. (Def. Mem. at 7.) Alex & Ani states that in MOA's first two sets of responses to Alex & Ani's First Set of Interrogatories ("the Interrogatories"), MOA also identified Kim as an owner of MOA. (Pl. Mem. at 5.) On November 16, 2011, after Alex & Ani sought to notice Kim, MOA withdrew its previous responses and served a third set of responses, in which it removed the prior references to Kim.

(Pl. Mem. at 5.) MOA states that Kim left MOA in 2010. (Def. Nov. 16 Ltr., at 3.) While at MOA, Kim was responsible for handling sales of the expandable bangle bracelets at issue in this litigation to Max & Chloe, Inc., a former defendant in this case.*fn3 (Def. Nov. 16 Ltr., at 3.) Prior to his departure, Kim was copied several times on correspondence relating to the litigation, which began in June 2010. (Def. Mem., Exs. B-E.)

Alex & Ani states that MOA has neither explained the date and circumstances of Kim's departure nor provided Alex & Ani with Kim's last known address or telephone number. (Pl. Mem. at 5.) MOA maintains that it cannot produce Kim as a witness because he is "not under its authority or control." (Def. Mem. at 13.)

Ku Chol Yi ("Chol Yi") is the founder and President of MOA (Def. Mem. at 7.) In its amended responses to the Interrogatories, MOA identified Chol Yi as MOA's sole partner and one of only two executives of the company. (Pl. Mem. at 6.) On October 20, 2011, Alex & Ani served a notice of deposition on Chol Yi. (Def. Mem., Ex. B, Notices of Deposition, at 3-4.) In response to a subsequent declaration by Chol Yi disclaiming "direct or personal knowledge of any of the facts relating to the subject matter of [the instant litigation]," (Def. Mem., Ex. C, Decl. of Ku Chol Yi [hereinafter "Chol Yi Decl."] ¶ 5), Alex & Ani stipulated that any deposition of Chol Yi would proceed only upon completion of the deposition of Samuel Kim, the corporate witness offered by MOA pursuant to Federal Rule of Procedure 30(b)(6), and then only if that deposition gave rise to subject matter of which Chol Yi has personal knowledge. (Pl. Mem. at 6.) MOA rejected Alex & Ani's proposed accommodation and moved to quash the notice of deposition. (Def. Mem. at 7.)

Ku Yang Yi ("Yang Yi") is an individual whose relevance to the instant litigation is less than clear. In its first and second sets of responses to the Interrogatories, MOA identified "Kyu Yi" as a partner and executive of MOA. (Pl. Mem. at 7.) Alex & Ani contends that on the basis of this identification, it noticed Chol Yi and Yang Yi, both of whom have business addresses identical to that of MOA's corporate headquarters.*fn4 (Id.) In its amended responses to the Interrogatories, MOA contended that Ku Chol Yi, MOA's founder and President, was the individual to which "Kyu Yi" referred, and not Ku Yang Yi. (Id.) MOA argues that although Yang Yi is Chol Yi's brother, Yang Yi does not hold any position at MOA and is not affiliated with the company. (Def. Mem. at 13; Def.'s Ltr. in Supp. of Req. for Pre-Mot. Conf. to Quash, dated Nov. 15, 2011 [hereinafter "Def. Nov. 15 Ltr."], at 1.) Alex & Ani contends that MOA has not provided sufficient information to negate the possibility that Yang Yi nevertheless has information relevant to this litigation, and that the deposition should therefore proceed for one hour to determine the extent to which Yang Yi may possess such information.

II. Applicable Law

Pursuant to Federal Rule of Civil Procedure 26 ("Rule 26"), "[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense- including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." Fed R. Civ. P. 26(b)(1). However, Rule 26 circumscribes the extent of discovery when, inter alia: (1) the discovery is unreasonably cumulative or duplicative; (2) the discovery can be obtained from some other source that is more ...


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