Commercial Litigation and Arbitration

If 30(b)(6) Witness Adequately Prepared, Others May Testify at Trial on Subjects the 30(b)(6) Lacked Knowledge of — Experts Designated for Non-Trial Purposes (e.g., Class Cert) But Not Trial May Testify on Rebuttal at Trial

Abu Dhabi Commercial Bank v. Morgan Stanley & Co., 2013 U.S. Dist. LEXIS 38787 (S.D.N.Y. Mar. 20, 2013):

A. Testimony of Plaintiffs' Witnesses on Subjects About Which Their 30(b)(6) Designees Disclaimed Knowledge

Defendants argue that plaintiffs should be precluded from calling witnesses to testify as to key subjects about which their Rule 30(b)(6) corporate representatives disclaimed knowledge, thereby frustrating defendants' attempt to get discovery regarding the basis for plaintiffs' investment decisions. Defendants rely on Reilly v. Natwest Markets Group Inc., [181 F.3d 253, 269 (2d Cir. 1999),] in which the Second Circuit affirmed a district court's preclusion of fact witnesses on the ground that "when a party fails to comply with Rule 30(b)(6), Rule 37 allows courts to impose various sanctions, including the preclusion of evidence." The readily distinguishable facts of that case and others in which courts have found such sanctions appropriate confirm that such sanctions are not warranted here.

Footnote 82. See, e.g., Kyoei Fire & Marine Ins. Co., Ltd. v. M/V Maritime Antalya, 248 F.R.D. 126, 152 (S.D.N.Y. 2007) (sanctions warranted where Rule 30(b)(6) witness's performance amounted to a non-appearance); Spanski Enters., Inc. v. Telewizja Polska, S.A., No. 07 Civ. 930, 2009 U.S. Dist. LEXIS 95288, 2009 WL 3270794, at *3 (S.D.N.Y. Oct. 13, 2009) (sanctions warranted where 30(b)(6) witnesses neither had personal knowledge of matters noticed nor took any steps to inform themselves with corporate knowledge). See also Crawford v. Franklin Credit Mgmt. Corp., 261 F.R.D. 34, 40 (S.D.N.Y. 2009) (denying request for sanctions where "there [was] no suggestion that [plaintiff's] counsel ever attempted in good faith to seek additional Rule 30(b)(6) testimony").

Defendants have not established that plaintiffs' Rule 30(b)(6) witnesses failed to adequately prepare,

Footnote 83. See EEOC v. American Intern. Group., Inc., No. 93 Civ. 6390, 1994 U.S. Dist. LEXIS 9815, 1994 WL 376052, at *3 (S.D.N.Y. July 18, 1994) (finding that corporate designees were not egregiously deficient where each exhibited specific knowledge of key issues identified by the notice, despite lacking knowledge on certain topics); see also Crawford, 261 F.R.D. at 40 (same).

that plaintiffs failed to make available individuals with relevant knowledge, or that defendants would be prejudiced by the designation of additional witnesses.

Footnote 84. See Reilly, 181 F.3d at 269 ("In assessing the propriety of a district court's preclusion of witness testimony, we consider the following factors: (1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance").

To the contrary, plaintiffs' 30(b)(6) witnesses possessed knowledge of the relevant information and either prepared by speaking with the very additional witnesses designated to testify or were prevented from doing so [by former colleagues who refused to cooperate]. Defendants may depose any new witness before trial if they so choose to avoid any prejudice.

B. Evidence and Testimony from Previously Identified Experts Who Have Not Been Designated to Testify at Trial

Plaintiffs move to preclude defendants from introducing evidence or testimony from plaintiffs' experts who were retained in connection with plaintiffs' motion for class certification to opine on the issue of reliance. Neither party will be permitted to present evidence or testimony from opponents' experts who opponents have not designated to testify at trial except, if necessary, on rebuttal.

Footnote 87. The parties need not show exceptional circumstances in order to admit testimony, on rebuttal, of experts previously designated. See Agron v. Trustees of Columbia Univ. in City of New York, 176 F.R.D. 445, 449 (S.D.N.Y. 1997) (discussing Rule 26(b)(4)(B)). Rather, this evidence is governed by the Federal Rules of Evidence and will be admitted only if relevant and non-cumulative. See id. The "if necessary" qualification cannot be determined at this time. I will revisit this motion if and when the need arises.

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