United States District Court, S.D. New York
MICHAEL DEL GIUDICE, WEICHERT ENTERPRISE II, LLC, JOSEPH LAMBERT, WARREN RUBIN, and BERNICE WOLLMAN, Plaintiffs,
W. SCOTT HARLAN, JAMES MAIZ, SHANE LITTS, and WILLIE ZAPALAC, Defendants.
Douglas A. Kellner, Esq., Thomas P. Vandenabeele, Esq.
Kellner Herlihy Getty & Friedman LLP.
A. Gordon, Esq., Joshua B. Katz, Esq. Kent, Beatty &
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
the parties in this case is a member of Rockland Capital, LLC
("Rockland"), a private equity fund manager. The
plaintiffs allege, among other things, that the defendants
breached Rockland's Operating Agreement by making certain
distributions. The plaintiffs now move for an order
precluding the defendants from calling at trial seven
witnesses - Peter Van Raalte, C. Kenneth Clay, Tony Pucillo,
Gerson Guzman, Adam Fitzner, Jason Ghoshhajira, and Jackson
Yang (the "Disputed Witnesses") - on the ground
that these individuals were not identified in the
defendants' initial disclosures. The motion is granted in
part and denied in part.
relationship among the parties deteriorated, the defendants
sent one of the plaintiffs, Michael Del Giudice, a Notice of
Default, accusing him of breaching a term of the Operating
Agreement that prohibits members of Rockland from
participating in competing businesses. (Third Amended
Complaint (“TAC”), ¶ 32; Notice of Default
dated Oct. 9, 2015 (“Notice of Default”),
attached as Exh. B to Declaration of Joshua B. Katz dated
Jan. 11, 2017 (“Katz Decl.”)). Specifically, the
Notice of Default alleged that Mr. Del Giudice violated the
non-compete provision through his involvement with Carnegie
Hudson Resources and Corinthian Capital Group
(“Corinthian Capital”). (TAC, ¶ 32; Notice
of Default). Accordingly, one of the causes of action in the
complaint seeks a declaratory judgment that Mr. Giudice did
not violate the Operating Agreement. (TAC, ¶¶
January 4, 2016, the parties exchanged initial disclosures
pursuant to Rule 26(a)(1) of the Federal Rules of Civil
Procedure. Both the plaintiffs and the defendants identified
Steven J. Kumble, Chairman of Corinthian Capital Group, LLC,
as a witness likely to have discoverable information about
Corinthian Capital and Mr. Del Giudice's relationship to
that entity. ([Plaintiffs'] Rule 26(a)(1) Initial
Disclosures, attached as Exh. F to Katz Decl., ¶ I;
Initial Disclosures of Defendants W. Scott Harlan, James
Maiz, Shane Litts and Willie Zapalac, attached as Exh. G to
Katz Decl., ¶ 1(k)). On September 21, 2016, the
defendants took the deposition of Mr. Kumble, both as an
individual and as a designee of Corinthian Capital pursuant
to Rule 30(b)(6). (Deposition of Steven Kumble, attached as
Exh. I to Katz Decl.; Katz Decl., ¶ 4; Deposition Notice
to Corinthian Capital Group, LLC, attached as Exh. 3 to
Plaintiffs' Memorandum of Law in Support of Their Motion
to Preclude Defendants' Addition of Witnesses and for
Attorney's Fees and Costs (“Pl. Memo.”)).
Discovery closed two days later. (Order dated Aug. 4, 2016).
things remained until December 13, 2016, when counsel
exchanged proposed designations of exhibits and witnesses.
The defendants' list included the seven Disputed
Witnesses, all of whom are officers or employees of
Corinthian. (Email from Joshua B. Katz dated Dec. 13, 2016
(“Katz 12/13/16 email”), attached as part of Exh.
K to Katz Decl.). Defendants' attorney suggested that
testimony of these new witnesses “could be obviated by
some simple factual stipulations, ” which he would
propose shortly. (Katz 12/13/16 email). The plaintiffs
declined the defendants' invitation to enter into a
stipulation, objected to the Disputed Witnesses, and filed
the instant motion. (Letter of Douglas A. Kellner dated Dec.
23, 2016, attached as Exh. 4 to Pl. Memo.).
course of briefing the motion, the defendants shed some
additional light on the rationale for identifying the
Disputed Witnesses. According to defendants' counsel, Mr.
Kumble had turned out to be an unsatisfactory witness:
While Mr. Kumble was able to answer some questions about the
four portfolio companies, he was unable to answer many
others, and sometimes testified that others at Corinthian
would know the answers. Further, at some points in his
testimony it appeared that Mr. Kumble may have been guessing
or reading from a document rather than testifying from
(Katz Decl., ¶ 5). Defendants' counsel therefore
turned to other sources of information:
While preparing our list of trial witnesses in December 2016,
I became concerned about Mr. Kumble's ability to give
complete testimony about the Corinthian portfolio companies
at trial. Accordingly, I visited Corinthian's web site,
www.corinthiancap.com, and clicked on the
“Team” link on its home page. The Team section
listed four members of the “Investment Committee”
(including Kumble) and four additional “Investment
(Katz Decl., ¶ 6) (citation omitted). The Disputed
Witnesses are the seven additional persons identified ...