Securities & Exchange Commission v. Merkin
283 F.R.D. 699
S.D. Fla.2012Background
- The SEC filed suit against Stewart Merkin alleging false public statements about his client to aid listing on an electronic quotation system.
- Merkin allegedly stated in four letters that his client was not under any federal or state securities investigation while the company was under SEC investigation.
- Merkin claimed the SEC advised him the investigation was nonpublic.
- Merkin sought a Rule 30(b)(6) deposition and, after attempts failed, served a 30(b)(6) deposition notice.
- Magistrate Judge Goodman ordered on June 12, 2012 that the SEC produce a Rule 30(b)(6) witness on seven topics.
- Plaintiffs object to Judge Goodman’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order permits inquiry into work product. | Merkin argues the order probes attorney work product and mental impressions. | Merkin contends the order permits necessary fact discovery and includes safeguards. | Order not clearly erroneous; work product protections adequately safeguarded. |
| Whether the order is relevant to the case. | Merkin contends confidential nature of investigations should not be discoverable. | Merkin asserts inquiry into non-public investigation details is relevant to defenses. | Order not clearly erroneous; confidential nature is relevant and discoverable to this defense. |
| Whether to permit questioning on revised topics. | Merkin seeks modification of topics to address unduly broad or irrelevant areas. | Merkin argues for permission to revise topics if allowed by procedure. | Motion to revise topics denied for failure to meet procedural requirements. |
Key Cases Cited
- SEC v. Kramer, 778 F.Supp.2d 1320 (M.D. Fla. 2011) (deposition of SEC may not necessarily invade work product when seeking underlying facts)
- Dees v. Hyundai Motor Mfg. Alabama, LLC, 524 F.Supp.2d 1348 (M.D.Ala. 2007) (relevancy analyzed case-by-case; abuse of discretion standard for magistrate reviews)
- Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (U.S. 1990) (test for reversing magistrate orders; abuse of discretion standard)