United States District Court, S.D. New York
VICTOR PIRNIK, individually and on behalf of all others similarly situated, Plaintiff,
FIAT CHRYSLER AUTOMOBILES, N.V., et al., Defendants.
MEMORANDUM OPINION AND ORDER
M. FURMAN, UNITED STATES DISTRICT JUDGE
4, 2018, the Court entered a Memorandum Opinion and Order in
this securities fraud class action, familiarity with which is
presumed, granting the motion of Fiat Chrysler Automobiles,
N.V. (“FCA”) and the other Defendants to compel
Lead Plaintiffs Gary Koopmann and Timothy Kidd and Plaintiff
Victor Pirnik (collectively, “Plaintiffs”) to
disclose the identities of those who had communicated with
purported “Confidential Witnesses”
(“CWs”) referenced in the Fourth Amended
Complaint (“FAC”). (Docket No. 207
(“Order”)). That decision was based on a sworn
declaration from Alex Crabb (the “Crabb
Declaration”) - identified in the FAC as
“CW1” - that statements attributed to him in the
FAC did “not accurately reflect” what he had said
to a “man identifying himself as a
‘counselor'” for Plaintiffs. (Id. at
2). At the Court's direction, Plaintiffs disclosed that
two of their investigators, Patrick Maio and Stephanie
Stanley, had communicated with the CWs, and Defendants then
served subpoenas seeking the investigators' testimony and
documents relating to their communication with the CWs.
Plaintiffs now move, pursuant to Rule 45(d)(3) of the Federal
Rules of Civil Procedure, to quash the subpoenas. (Docket No.
219). For the following reasons, Plaintiffs' motion is
granted in part and denied in part.
correctly note that the Court already considered and rejected
many of the arguments that Plaintiffs press here when it
granted Defendants' motion to compel. For instance,
Plaintiffs repeat their contentions that there are no
inconsistencies between the statements attributed to CW1 in
the FAC and the Crabb Declaration, (compare Docket
No. 220 (“Pls.' Mem.”), at 8-9, with
Docket No. 206 (“Pls.' Ltr. Br.”), at 2-3);
that the information sought is irrelevant, largely because
“the Court did not rely on the statements of CW1 in
makings its determination on [Defendants'] motion to
dismiss, ” (compare Pls.' Mem. 5, 7
with Pls.' Ltr. Br. 3); and that the information
is categorically protected by the work product doctrine and
its exceptions do not apply, (compare Pls.' Mem.
12-23 with Pls.' Ltr. Br. 1-2). As Plaintiffs
may not seek reconsideration of the Court's prior
decision in the guise of a motion to quash, the Court
declines to consider any argument that Plaintiffs previously
made without success. As Defendants point out, there would be
little purpose to the Court's prior Order requiring
Plaintiffs to disclose the identities of their investigators
if Defendants were barred from using that information to
conduct any “further inquiry.” (Docket No. 228
(“Defs.' Mem.”), at 11-12).
said, Plaintiffs press some new arguments, and those
arguments do warrant quashing Defendants' subpoenas in
part. In the first instance, the disparities Defendants have
identified are limited to CW1 and the investigator who spoke
with him, Mr. Maio. (Pls.' Mem. 9). In their opposition
to Plaintiffs' motion, Defendants elide the distinctions
among the three CWs and between the two investigators, but
they ultimately identify no specific concerns with the other
CWs whose statements were used to bolster Plaintiffs'
allegations in the FAC or any inconsistencies arising out of
interviews conducted by Ms. Stanley. Accordingly, Defendants
fail to show that the subpoenas it directed to Ms. Stanley
are relevant, see Fed. R. Civ. P. 26(b)(1), and the
Court grants Plaintiffs' motion to quash those subpoenas.
Similarly, Defendants fail to show the need for discovery
with respect to communications with the other CWs.
Accordingly, the subpoenas directed to Mr. Maio are quashed
to the extent that they seek information concerning his
communications with anyone other than CW1. See id.
regard to Mr. Maio, the Court continues to be of the view
that further inquiry into the discrepancies between the
statements attributed to CW1 in the FAC and the allegations
in the Crabb Declaration is warranted, and the discovery
sought is proportional to the needs of the case. See
id.; cf., e.g., In re Symbol Techs., Inc.
Sec. Litig., No. 05-CV-3923 (DRH) (AKT), 2017 WL
1233842, at *11 (E.D.N.Y. Mar. 31, 2017) (concluding that
witness interview memoranda in a securities fraud suit were
relevant under Rule 26(b)(1) because they “contain[ed]
factual information elicited from the [confidential
informants] bearing upon Plaintiff's allegations of
[Defendant's] wrongdoing”). The Court does not
agree with Plaintiffs that the full scope of discovery sought
from Mr. Maio is necessarily protected work product. At a
minimum, Defendants are entitled to take Mr. Maio's
deposition and inquire into his communications with CW1 and
the purported discrepancies between those communications and
the statements attributed to Mr. Maio in the FAC. See
City of Pontiac Gen. Emps.' Ret. Sys. v. Lockheed Martin
Corp., 952 F.Supp.2d 633, 636-37 (S.D.N.Y. 2013); In
re Millennial Media, Inc. Sec. Litig., No. 14-CV-7923
(PAE), 2015 WL 3443918, at *4, *6-12 (S.D.N.Y. May 29, 2015).
To the extent that any questions asked of Mr. Maio call for
testimony that would reveal counsel's mental processes,
see Feacher v. Intercontinental Hotels Grp., No.
06-CV-0877, 2007 WL 3104329, at *2 (N.D.N.Y. Oct. 22, 2007),
Plaintiffs may object at the deposition. The work product
doctrine is not a valid basis to preclude a deposition
request for documents requires more analysis, as such items
are categorically protected by the work product doctrine to
the extent that they tend to reveal the “mental
impressions, conclusions, opinions, or legal theories of a
party's attorney or other representative concerning the
litigation.” Fed.R.Civ.P. 26; see also United
States v. Nobles, 422 U.S. 225, 238-39 (1975)
(“[A]ttorneys often must rely on the assistance of
investigators and other agents in the compilation of
materials in preparation for trial. It is therefore necessary
that the [work product] doctrine protect material prepared by
agents for the attorney as well as those prepared by the
attorney himself.”). The Court agrees with Plaintiffs
that the work product doctrine protects Mr. Maio's
interview notes and memoranda. See, e.g., In re
Gen. Motors LLC Ignition Switch Litig., 80 F.Supp.3d
521, 532 (S.D.N.Y. 2015) (“Interview notes and
memoranda produced in the course of . . . investigations have
long been considered classic attorney work product.”);
see also Upjohn Co. v. United States, 449 U.S. 383,
399 (1981) (“Forcing an attorney to disclose notes and
memoranda of witnesses' oral statements is particularly
disfavored because it tends to reveal the attorney's
mental processes.” (citation omitted)). Defendants do
not show that they have a “substantial need” in
defending this case on the merits to review those documents.
See, e.g., SEC v. Nadel, No. 11-CV-215
(WFK) (AKT), 2013 WL 1092144, at *2 (E.D.N.Y. Mar. 15, 2013).
And the Court concludes that Plaintiffs did not waive
protection of the doctrine by using CW1's statements -
rather than affirmatively relying on the interview notes and
memoranda themselves - in the FAC. Cf. In re
Gen. Motors, 80 F.Supp.3d at 534. Plaintiffs do not
justify quashing the request for documents beyond interview
notes and memoranda, as they barely address other such
documents at all, and there is no reason to conclude that any
and all responsive documents would necessarily be covered by
the work product doctrine. See, e.g., Johnson v.
Bryco Arms, No. 02-CV-3029, 2005 WL 469612, at *5
(E.D.N.Y. Mar. 1, 2005) (“On its face the disputed
document supports the conclusion that it is a straightforward
description of events by the witness, showing no input from
attorneys.”). To the extent Plaintiffs believe that
other responsive documents are privileged or covered by the
work product doctrine, they may seek to protect them through
a privilege log in the normal course. They may not refrain
from complying altogether.
foregoing reasons, Plaintiffs' motion to quash is GRANTED
in part and DENIED in part. Specifically, Plaintiffs'
motion is granted to the extent that Defendants'
subpoenas seek testimony or documents from Ms. Stanley,
testimony or documents from Mr. Maio pertaining to CWs other
than Crabb, and interview notes and memoranda from Mr. Maio.
By contrast, Plaintiffs' motion is denied to the extent
that they seek Mr. Maio's deposition regarding his
communications with Crabb and responsive documents other than
interviews notes and memoranda. In view of its limited scope,
the deposition of Mr. Maio shall not exceed two hours and
shall be conducted within the next three weeks. Plaintiffs
shall produce any responsive documents and/or a privilege log
at least two days prior to the deposition.
Clerk of Court is directed to terminate Docket No.
 Plaintiffs insist that they should be
permitted to depose Crabb in advance of any depositions of
the investigators. (Pls.' Mem. 24-25 (“It would be
completely unfair to allow Defendants to take the depositions
of Plaintiffs [sic] investigators without permitting the
deposition of Mr. Crabb, so that Plaintiffs can examine him
concerning the statements he made in his declaration and his
overall story.”)). To the extent Plaintiffs'
request is procedurally proper, it is denied. The Court is
again unpersuaded by Plaintiffs' efforts to circumvent
Court-imposed discovery deadlines and limitations on the
number of fact depositions. (See Docket No. 200;
Order 1-2). If ...