MPD ACCESSORIES, B V. Plaintiff,
URBAN OUTFITTERS, INC., GMA ACCESSORIES INC. d/b/a/CAPELLI NEW YORK, and ABC CORPS 1-5, Defendants.
MEMORANDUM AND ORDER
KEVIN NATHANIEL FOX, Magistrate Judge.
Before the Court is the defendants' motion,  for an order: (1) "to preclude the plaintiff from introducing evidence in support of her [sic] claim that the subject design was original and/or created by Plaintiff, " pursuant to Rule 37(b)(2)(A)(ii); (2) "to compel the plaintiff to produce the 30(b)(6) witness, Joris Drontmann" ("Drontmann"), pursuant to Rule 37(a)(3)(B)(2),  or, alternatively, "to compel Corine Kamp ["Kamp"] and Joris Drontmann to comply with the prior Court's orders with Court Ordered deposition dates by way of a Conditional Preclusion Order"; and (3) "for attorneys' fees and related expenses, " pursuant to Rule 37(a)(5)(A) and Rule 37(b)(2)(C), "and for such other relief as this Court deems just and proper." The plaintiff opposes the motion.
Relevant Procedural History
On December 20, 2012, the defendants served the plaintiff's law firm "Gusy Van der Zandt LLP, " in New York, New York, notices of deposition for Kamp,  to be held on January 28, 2013, and "one or more" of the plaintiff's "officers, directors, managing agents, or other persons, " pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, to be held on January 25, 2013. On February 13, 2013, the assigned district judge ordered the plaintiff to respond to the defendants' outstanding discovery requests by March 15, 2013.
By a letter, dated February 25, 2013, the plaintiff requested that "the depositions of Menno Menke ["Menke"] and Corine Kamp be permitted to be taken via video-conference, or in the alternative that at least the deposition of Corine Kamp be permitted to be taken via video-conference." Menke is the plaintiff's owner and chief executive officer. On March 6, 2013, the Court conducted a conference to address the plaintiff's request. During the conference, the defendants' counsel explained that the plaintiff's counsel chose March 11, 2013, as a convenient deposition date for Menke and Kamp. The plaintiff's counsel stated:
Well that date was suggested with the possibility in mind, and I had asked defendant's [sic] counsel to do at least some of these depositions via videoconference.... The designer, she's traveling in the Far East and in India and she won't be back until April, and so the earliest she could appear would be in New York that is, would be April 15th.
The Court reminded the plaintiff's counsel that all discovery obligations had to be met by March 15, 2013, and that, "if the client elects to do other than that, there are potentially consequences to the client." The plaintiff's counsel then raised with the Court, for the first time, the issue of whether new deposition notices needed to issue by the defendants. He stated: "Part of the problem with scheduling [the depositions] was I asked for new notices of deposition that state particular times for the plaintiffs [sic].... I repeatedly asked for specific times and for... notices of depositions to be issued." Since the parties had a different view of whether the December 20, 2013 deposition notices were valid, the Court directed them to brief the issue.
On March 14, 2013, the Court determined that no new deposition notices needed to issue and directed the plaintiff to "produce for deposition in New York City Corine Camp, Menno Menke and a witness who will testify pursuant to Fed.R.Civ.P. 30(b)(6); the deposition must be completed on or before April 1, 2013."
On March 26, 2013, the plaintiff stated in a letter sent to the assigned district judge:
With regard to Corine Kamp, there have been very difficult circumstances with regard to scheduling her deposition as well, and Plaintiff has requested on numerous occasions that no plans should be made by Defendant [sic] with regard to her deposition so that they do not incur any unnecessary expense. During mid-March, in connection with Plaintiff's request to video-conference Ms. Kamp's deposition, which Defendants opposed, an issue with regard to deposition notices arose, and Judge Fox then set the date by which depositions must be completed to April 1, 2013. Ms. Kamp is currently in the Far East on an entire month long business trip upon which she takes care of various seasonal issues for the Plaintiff. Because Defendants will not agree to a short extension for Ms. Kamp to be deposed, Plaintiff is currently preparing a request for an extension of time for her deposition until after she returns to Amsterdam on April 13, 2013.
Docket Entry No. 63.
On March 27, 2013, the assigned district judge ordered that "Plaintiff must produce Ms. Kamp for deposition by April 1, 2013. The deposition can be conducted by Skype if she is in Asia. The parties can agree on an alternate date if Defendant [sic] does not wish to conduct the deposition by Skype." On March 27, 2013, the defendants sent a letter to the assigned district judge, informing her that they did not wish to proceed with Kamp's deposition via Skype and they "will agree to any other date on or before April 1." (Docket Entry No. 65). The plaintiff responded by a letter on the same date, contending "there is good cause to extend the April 1, 2013 deadline for the deposition of Corine Kamp to be completed." (Docket Entry No. 66). On March 28, 2013, the defendants sent a letter to the assigned district judge, seeking to "clarify that the March 27 memo endorsed order did not approve MPD's decision to violate the Court's February 13 and March 14 orders and did not vacate Magistrate Fox's March 14 order, but simply gave the parties the option to agree upon another date if they chose to." (Docket Entry No. 64).
On March 29, 2013, the Court held a telephonic conference to address certain issues that arouse during Menke's deposition, which was conducted on that day. At the end of the conference, the defendants' counsel stated that the parties had "a dispute over the import of the Judge Swain memo endorsed order on March 27th. It's our view that Judge Swain did not disturb... Your Honor's March 14th ruling" and that she "at no time extended [the] April 1st date.... I would respectfully asked that Your Honor clarify that our understanding, the defendant's [sic] understanding of the order is correct." The plaintiff's counsel contended that "there is some ambiguity here." The Court stated:
I'm not clear that the defendant [sic] is unhappy with the endorsement that Judge Swain made, it advised that April 1st is the date by which these depositions are to occur. I think Judge Swain was trying, in her reference to using Skype, to provide a means for the parties if you wish to pursue it, although we had talked, I think, at the conference about maybe remote deposition, but in any event, to provide a means that might accommodate the parties' desire to capture testimony from the employee who is in Asia, traveling in Asia on business, within the deadline, without necessarily having her travel to New York. That seems to be an accommodation that may not work for the parties, but in any event, the April 1st date is memorialized in that endorsement as the date to complete the depositions. So there's an avenue for you to, if you want to pursue it, enable her testimony to be captured while she's traveling on business via Skype or perhaps some other means, if you wish, but by April 1st, she has to give testimony.
Docket Entry No. 86, p.12.
The plaintiff's counsel asked the Court for permission to submit an "affidavit showing good cause why we should, ... perhaps we would request an amendment of that order solely for Corine Kamp." The Court stated:
Yes, but she's known since we had the conference earlier in March that her deposition had to be taken by April 1st because you've been in, I'm hopeful you've been in communication with your client to let her know of the Court's directive. So the fact that it's March 29th is of little import since you've known for several weeks and so has the potential deponent that her testimony had to be captured by April 1st.
Docket Entry No. 86, p.13.
On April 2, 2013, the plaintiff requested an informal conference, pursuant to Local Civil Rule 37.2, concerning "a protective order from the Court and/or an extension of time for Corine Kamp's deposition." The plaintiff's April 2, 2013 letter stated:
[T]here have been significant logistical issues presented to the Plaintiff with getting Corine Kamp to New York for her deposition due to her long planned and long lasting business trip to Asia. Fully aware and in due deference to Your Honor's Order dated March 14, 2013, Plaintiff has attempted to produce Ms. Kamp here in New York - without success as of yet. Pursuant to Judge Swain's Order dated March 27, 2013, Plaintiff offered to Defendants to provide Corine Kamp via Skype before April 1, 2013, but Defendants insisted on having the deposition conducted in person here in New York. In further compliance with Your Honor's March 14, 2013 Order and Judge Swain's March 27, 2013 Order, Plaintiff also offered to Defendants to make Corine Kamp available for her deposition to Defendants any day during the week of April 15, 2013 (15th, 16th, 17th, 18th or 19th), which is the first possibility after her return to Amsterdam on April 13, 2013 from Asia. Defendants have objected to this arrangement.
Docket Entry No. 70.
On April 3, 2013, the Court denied the plaintiff's April 2, 2013 request for an informal conference. On June 19, 2013, the Court conducted a Local Civil Rule 37.2 conference and granted leave to the defendants to file the instant motion.
On January 28, 2013, the plaintiff paid for Kamp's business trip. Kamp departed from Amsterdam, Netherlands, for Hangzhou, China, on March 16, 2013. She returned to Amsterdam, Netherlands, from Kuala Lumpur, Malaysia, on April 13, 2013.
The defendants contend that the plaintiff "was not unaware of the risk when it decided to flout the Discovery Orders that plainly and clearly required Corine Kamp and its 30(b)(6) witnesses to appear in New York by April 1." According to the defendants, "discovery violations were not without financial cost to Defendants who were required to file numerous applications, both formal and informal to attempt to persuade Plaintiff to abide by the Orders." They assert that their Rule "30(b)(6) notice sought witnesses on the alleged creation of the designs in question, " but the "witness produced by Plaintiff had no knowledge in this regard and pointed to Joris Drontmann as the company officer that not only had this knowledge but who himself allegedly participated in the creation of the design." However, the defendants contend, Drontmann "failed to appear by the April 1 deadline." The defendants maintain that they placed the plaintiff on notice that they were seeking sanctions prior to this motion, and the Court afforded numerous opportunities ...