320 F.R.D. 112
S.D.N.Y.2017Background
- William Browder, CEO and co-founder of Hermitage Capital, is a central non-party witness in the Government's civil forfeiture action alleging a $230 million Russian Treasury fraud and related money laundering involving Prevezon.
- Browder investigated and publicized the scheme, helped secure sanctions (including the Magnitsky Act), and supplied information and documents to the Government.
- Prevezon deposed Browder once in April 2015 (the First Deposition). Browder produced additional documents both after that deposition and via the Government, which Prevezon says created new, relevant issues.
- Judge Griesa ordered a second deposition in November 2015; scheduling and discovery disputes (and a disqualification motion) delayed and stayed that deposition.
- Prevezon moved to compel a second deposition based on newly produced documents; Browder opposed for lack of good cause and urged the reassigned court to reevaluate Judge Griesa’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether leave is required and whether a second deposition should be allowed under Rule 30(a)(2)(A)(ii) and Rule 26(b)(2) | Prevezon: New documents produced after the First Deposition raise non-cumulative, important issues (e.g., whether HSBC Suisse was defrauded) that justify a second deposition. | Browder: No good cause; deposition already occurred and second deposition is unnecessary and burdensome. | Court granted in part: second deposition allowed limited to issues from newly produced documents and capped at four hours. |
| Whether the reassigned judge must or should overturn Judge Griesa’s November 2015 order | Prevezon: Judge Griesa acted within discretion; prior order should stand. | Browder: Reassigned court should independently reassess because prior order lacked proper basis. | Court declined to reopen settled issues lightly, conducted independent review, and upheld the result permitting a second deposition. |
| Scope and limitation of a reopened deposition (must topics be pre-enumerated?) | Prevezon: May examine Browder on any issues revealed by newly produced documents; topic pre-notice not required. | Browder: Deposition should be narrowly limited and certain topics (per his proposal) restricted. | Court held reopened questioning must be limited to newly discovered information but allowed Prevezon latitude; parties need not pre-enumerate topics. |
| Effect of having proceeded with the First Deposition before document production was complete (waiver of second deposition) | Prevezon: It reasonably proceeded given representations but still needs a second deposition because substantial new documents were later produced. | Browder: Prevezon chose to proceed prematurely and thus cannot now seek a second deposition. | Court acknowledged Prevezon’s earlier choice but found that the volume and importance of later productions justify a limited second deposition. |
Key Cases Cited
- Bergerson v. N.Y. State Office of Mental Health, Cent. N.Y. Psychiatric Ctr., 652 F.3d 277 (2d Cir. 2011) (reconsideration of a prior order is disfavored absent intervening change, new evidence, or need to correct clear error).