Opinion
No. 97 Civ. 4978 (LMM) (HBP).
April 8, 2002
MEMORANDUM OPINION AND ORDER
I. Introduction
I write to resolve several discovery disputes that the parties have raised in correspondence to me.
II. Bear Stearns Tapes
Plaintiffs first seek to compel discovery of the tape recordings of the telephone lines dedicated to Sarko Sandrik's telephone for the period from May 15, 1995 through May 21, 1995. Bear Stearns objects to the production of these tapes primarily on the ground that the tapes constitute "common issue" discovery and that the time for such discovery ended in September 2000.
The tapes in issue are part of a group of approximately 280 tapes that were initially requested by plaintiffs in 1998. Each tape is approximately 24 hours long and contains 32 channels. The tapes are not indexed by call; the only way to locate calls relevant to the issues in this action is to listen to each recorded call. In response to plaintiffs' initial request for the tape recordings, Bear Stearns agreed to make all the tapes available for plaintiffs' review upon the following conditions:
1. A representative of Bear Stearns would participate in the review.
2. Bear Stearns would actually copy only those calls that are responsive to plaintiffs' discovery request.
3. The parties would stop listening to any call as soon as the Bear Stearns' representative determined that it is not responsive or is privileged.
4. In the event that Bear. Stearns asserted that a conversation is privileged, no waiver argument would be based on the fact plaintiffs' representative listened to all or part of the recording.
5. Any disagreement concerning responsiveness or privilege would be resolved by the Court.
I had an extensive conference with counsel on March 29, 2000 concerning the adequacy of Bear Stearns' response. The principal issue at this conference was who would bear the burden and expense of reviewing the tapes for relevant calls. Plaintiffs sought to have Bear Stearns review the tapes initially to locate relevant calls. At that time, I concluded that the burden of locating relevant calls was substantially the same for both plaintiffs and Bear Stearns and that Bear Stearns' offer to produce the tapes for plaintiffs' review, under the conditions set forth above, was an adequate response.
Notwithstanding Bear Stearns' offer, plaintiffs never reviewed the tapes. To the contrary, it appears that plaintiffs expressed no further interest whatsoever in the tapes until January 14, 2002, when plaintiffs' counsel wrote to Bear Stearns' counsel and sought to review the tapes that are currently in issue. Plaintiffs claim that the tapes are relevant to both the counterclaims that Bear Stearns has recently asserted against plaintiffs Salhab and Khoury and to discovery for the Group 7 plaintiffs. Defendants argue that plaintiffs' relevance arguments are without merit and that plaintiffs' are really trying to reopen discovery that has been closed for almost one and one-half years.
Since the tapes in issue were first requested in 1998 as part of a larger request for tapes, it is not entirely accurate to characterize plaintiffs' request for the tapes as an attempt to reopen common issue discovery. Plaintiffs clearly made a timely discovery request that encompassed the tapes in issue. Nevertheless, in light of the fact that plaintiffs had no interest in the tapes for several years after they were offered by Bear Stearns, plaintiffs' renewed request for a small portion of the tapes that they initially requested suggests that plaintiffs are not merely completing discovery that they commenced in a timely manner.
On balance, I conclude that the ends of justice are best served by permitting plaintiffs to review the tapes in issue, subject to the conditions originally offered by Bear Stearns. If the tape recordings do contain any relevant, nonprivileged conversations, the tapes have unique evidentiary value. No other evidence will disclose what happened in those conversations with an accuracy that is almost unimpeachable, and the tapes would therefore materially assist the jury in its search for the truth. In addition, denying production of the tapes may create a situation in which the jury unconsciously speculates about the content of the tapes, and assigns them an unwarranted significance.
Accordingly, no later than April 22, 2002, Bear Stearns shall make available to plaintiffs the tape recordings of the telephone lines dedicated to Sarko Sandrik's telephone for the period from May 15, 1995 through May 21, 1995. The tape recordings are to be reviewed by plaintiffs' counsel under the conditions set forth in Bear Stearns' response to plaintiffs' first request for production of documents, dated October 20, 1998.
III. Plaintiffs' Application for a Protective Order Concerning Certain Depositions A. Background
By letter dated November 30, 2001, plaintiffs seek a protective order with respect to five Group Four plaintiffs (Haidar Jaafarawi, Haidi Jaafarawi, Azize Akkad Wattar, Iyad Hilal and Marwan Bondak) and three Group Five plaintiffs (Soumaya Traboulsi, Omaya Traboulsi and Huda Traboulsi). Specifically, plaintiffs seek an order directing that the depositions of Haidar Jaafarawi, Haidi Jaafarawi, Azize Akkad Wattar, Soumaya Traboulsi, Omaya Traboulsi, Huda Traboulsi be taken telephonically because of the alleged ill health, travel anxiety or penury of these plaintiffs and that the depositions of Hilal and Bondak either be taken telephonically or adjourned so that they can obtain visas to travel to the United States.
The dispute with respect to the pending application for a protective order has a history, an understanding of which is necessary to understand the parties' positions in the current dispute.
This is a common law fraud action involving approximately 250 individual plaintiffs with individual claims against defendants. Plaintiffs allege in principal part that they were defrauded by an individual named Daouk and that defendants are liable for Daouk's frauds on a variety of theories. Due to the large number of plaintiffs, there have been a number of disputes concerning discovery.
One of the problems that was previously raised was the parties alleged failure to respond to notices of depositions with a firm date or a request for a telephonic deposition in a timely manner. Counsel claimed that discovery was being unduly delayed by the adverse party's delay in responding to notices of deposition. In an effort to eliminate this problem, I issued an Order on February 7, 2001 which provided, in pertinent part:
Although notices of deposition served in this district routinely set forth a date for the deposition, in most cases, counsel confer concerning the date and agree amicably on a date that is convenient to all parties. Thus, the date set forth in a party's notice of deposition is rarely (if ever) the date on which the deposition actually takes place.
Within fifteen (15) business days of receiving a notice of deposition for a party, counsel receiving such notice shall either move for a Protective Order or contact his adversary and advise whether the deposition will proceed on the date originally noticed or whether an adjournment is required. Any adjournment shall not exceed thirty (30) days from the date originally noticed. Unless good cause for an extension is shown a party's failure to move for a Protective Order precluding the deposition within fifteen (15) days of the receipt of a notice of deposition shall constitute a waiver of the claim that the deposition should not be held.
Order dated February 7, 2001 at ¶ 5 (emphasis added). Given the events leading to the entry of the Order, there could be no misunderstanding that the purpose of the Order was to require the parties to state promptly their positions in response to notices of deposition.
On March 30, 2001, defendants served a notice seeking the depositions of the Group Four plaintiffs, including Haidar Jaafarawi, Haidi Jaafarawi, Azize Akkad Wattar, Iyad Hilal and Marwan Bondak. On April 18, 2001, plaintiffs sought a "blanket" protective order staying these and several other depositions on the ground that the depositions were being sought prematurely. No claims of individual disability were asserted with respect to any of the individuals noticed.
On July 19, 2001, approximately three and one-half months after the service of the notice of depositions, plaintiffs made a second application for a protective order with respect to the Group Four plaintiffs, claiming that (1) health problems prevented Wattar from coming to his District and providing a deposition; (2) the inability to obtain a visa prevented Bondak from providing a deposition in this District, and (3) that financial hardship prevented Hilal, Haidar Jaafarawi and Haidi Jaafarawi from providing a deposition in this District.
On July 12, 2001, defendants served notices seeking the depositions of the Group Five plaintiffs, including Soumaya Traboulsi, Omaya Traboulsi and Huda Traboulsi. Following the same procedure they had used with respect to the Group Four plaintiffs, plaintiff made a blanket application on July 18, 2001 for a protective order with respect to all Group Five plaintiffs on July 18, 2001, claiming that the notice of deposition was served prematurely. No individualized claims of hardship were contained in plaintiffs' July 18 application.
Defendants challenged the applications for protective orders made by plaintiffs on April 18 and July 18 and 19, 2001, and the dispute was resolved at conferences held on October 12 and October 16, 2001. At that time I rejected the grounds asserted in plaintiffs' April 18 and July 18 applications and concluded that the grounds asserted in plaintiffs' July 19 application were waived because they were not asserted within the fifteen (15) day time limit set by my February 7, 2001 Order. Accordingly, I directed that Haidar Jaafarawi, Haidi Jaafarawi, Azize Akkad Wattar, Iyad Hilal, Marwan Bondak, Soumaya Traboulsi, Omaya Traboulsi and Huda Traboulsi appear for their depositions within the District no later than November 30, 2001. Amended Order, dated October 17, 2001, at ¶¶ 2 and 6. My Order expressly provided: "[a]n unjustified failure to comply with this Order may result in the issuance of a report and recommendation recommending that the claims of any defaulting plaintiff be dismissed with prejudice." Amended Order, dated October 17, 2001, at ¶ 2; see also Amended Order, dated October 17, 2001, at ¶¶ 2 and 6. Because of the possibility of a change in circumstances that could not have been raised within fifteen (15) days of the service of the notice of deposition, I granted plaintiffs leave to make a renewed motion for a protective order asserting any such change in circumstances. Transcript of Proceedings, October 16, 2001 at 115.
Given the history of this litigation, defendants are understandably skeptical of the excuses proffered by plaintiffs. In at least two instances, plaintiffs who had claimed an inability to travel to the United States to provide a deposition were subsequently able to overcome the claimed obstacles to travel.
Although plaintiffs' counsel stated at the October 16 conference that any renewed or new motion for a protective order would be made within ten (10) days, Transcript of Proceedings, October 16, 2001 at 113, six weeks later, on the deadline date for the appearance of the plaintiffs who were the subject of my October 17, 2001 Discovery Order, the instant application was made.
B. Specific Grounds Asserted for Protective Orders
Haidar Jaafarawi and Haidi Jaafarawi claim that they are unable to provide a deposition in this District for financial reasons. This is the same reason asserted in the Jaafarawis' July 2001 application for a protective order that I found was waived in October 2001; it is not a new impediment that could not have been raised in accordance with the schedule. set forth in my February 7, 2001 Order. Moreover, although Haidar Jaafarawi and Haidi Jaafarawi make conclusory claims of poverty, they no where specify their assets and liabilities or why they cannot borrow the funds necessary to travel to this District to be deposed. Thus, even if it were appropriate to consider the substance of their excuse, they have not established that they lack the funds to comply with my October 17, 2001 Amended Order. Accordingly, the Jaafarawi's application for a protective order is denied.
Haidar Jaafarawi and Haidi Jaafarawi have submitted a document that purports to be a certificate from the Mayor of the Zobal Elbuhat Area that the Jaafarawis are "financially poor" (Exhibit G to the Letter of Todd C. Norbitz, Esq., dated November 30, 2001). Although the letter appears to be typed, the letter is not on letterhead stationery and gives no hint of what criteria were used in determining that the Jaafarawis are "financially poor" or what investigation, if any, was performed to reach this conclusion. Even if this document is what it purports to be, it is so brief and conclusory that it lacks any probative value.
Azize Akkad Wattar seeks a protective order claiming that she is 85 years of age and suffers from arterial hypertension, severe cerebrovascular disease and chronic obstructive lung disease. These are also the same reasons that were asserted in the July 2001 application for a protective order and that I found were waived in October 2001. Since Wattar is asserting the same grounds that I previously found were waived, Wattar's application for a protective order is also denied.
Hilal and Bondak both seek protective orders delaying their depositions on the ground that they have been unable to obtain visas to travel to the United States. Although Hilal did not previously raise this ground, it is substantively invalid. Early on in this case, it was clear that many of the plaintiffs would require visas to travel to the United States to be deposed. Accordingly, I entered an Order in this matter on June 15, 1999 which provided, in pertinent part:
In order to avoid delays in their appearing for depositions, all plaintiffs are directed to apply for visas to travel to the United States forthwith.
June 15, 1999 Order at ¶ 5. Since it appears from the pending application for a protective order that Hilal did not apply for a visa until November 2001 — more than two years after he was directed to do so — his failure to secure a visa does not justify his failure to comply with my October 17, 2002 Amended Order. His application for a protective order is denied.
Bondak applied for a visa in May 2001. His application was denied, and he was told by officials at the United States Embassy in Damascus that he had to wait to six months before reapplying. When he applied again in November, 2001, his application was again rejected, and he was again told that he could not apply again until an additional six months had elapsed. Since Bondak sought a visa prior to the entry of my October 17, 2001 Order, and did all that he could after the entry of my October 17 Order to obtain a visa, his application for a protective order is granted. Bondak is directed to apply for a visa on the earliest possible date on which he can do so in May 2002. If the visa is granted, he is to appear in the District to be deposed within ten (10) business days of the visa's issuance. If the visa is denied, he is to continue to reapply on the earliest date possible until a visa is issued.
Finally, the three Group Five plaintiffs — Soumaya Traboulsi, Omaya Traboulsi and Huda Traboulsi — seek a protective order on various grounds. Soumaya and Omaya Traboulsi claim that various medical conditions, including osteoarthritis, obesity, diabetes and chronic lower limb edema prevent them from traveling to New York to give a deposition. In addition, Omaya and Huda Traboulsi claim that they are Arabic women who wear veils and that they are extremely anxious about traveling to New York City after the infamous mass murders that were committed here on September 11, 2001. To the extent that Soumaya and Omaya rely on medical conditions, the conditions asserted are all chronic conditions that must have existed at the times their depositions were noticed on July 12, 2001. Since they were not asserted within fifteen (15) days of the date on which he depositions, they are waived. To the extent that Omaya and Huda assert anxiety concerning traveling to New York, their anxieties are baseless. There is no evidence in the record suggesting that individuals of Middle-Eastern ancestry have been subject to acts of revenge since the mass murders of September 11.
To the extent that the applications for protective orders are denied, defendants also seek the imposition of sanctions as a result of the plaintiffs' failure to comply with my October 17, 2001 Order. Since defendants seek litigation — ending sanctions as a result of the plaintiff's failure to comply with my October 17, 2001 Order, I conclude that this aspect of the current dispute should be raise by formal motion, and defendants' application for sanctions is, therefore, denied without prejudice to renewal by formal motion.
IV. Conclusion
Accordingly, plaintiffs' application to compel production of certain tape recordings is granted. No later than April 22, 2002, Bear Stearns shall make available to plaintiffs the tape recordings of the telephone lines dedicated to Sarko Sandrik's telephone for the period from May 15, 1995 through May 21, 1995. The tape recordings are to be reviewed by plaintiffs' counsel under the conditions set forth in Bear Stearns' response to plaintiffs' first request for production of documents, dated October 20, 1998.
The application of Haidar Jaafarawi, Haidi Jaafarawi, Azize Akkad Wattar, Iyad Hilal, Soumaya Traboulsi, Omaya Traboulsi and Huda Traboulsi for protective orders is denied, and the application of Marwan Bondak for a protective order is granted. Defendants' application for sanctions is denied without prejudice to renewal by way of formal motion.
SO ORDERED.