City of Almaty, Kazahkstan v. Mukhtar Ablyazov

Background

The plaintiffs sought to rely at trial on Kairat Sadykov’s testimony to authenticate the “Tradestock spreadsheets,” which reflected transfers of money between various entities. The court had allowed the plaintiffs to add Sadykov and two other witnesses after discovery closed, but limited the defendants’ depositions of those witnesses to the spreadsheets’ authenticity and related foundational questions. The court permitted defense counsel to ask about the meaning of information in the spreadsheets.

At Sadykov’s deposition, the plaintiffs’ counsel asked about his work at BTA Bank, the operations of a bank unit called UKB-6, other documents, communications with individuals, the meaning of spreadsheet information, and particular transactions. Triadou objected that these questions exceeded the court’s limits. Triadou then moved for sanctions under Rule 37 of the Federal Rules of Civil Procedure, asking the court to strike the deposition, prevent the plaintiffs from calling Sadykov at trial, and award attorney’s fees and costs.

Positions of the Parties

Triadou argued that the plaintiffs had used Sadykov’s designation to obtain testimony that was unrelated to authenticating the spreadsheets. It also argued that Sadykov had not previously seen the spreadsheets and was not competent to authenticate them or the information they contained.

The plaintiffs argued that their questions stayed within the court’s order because they were intended to establish the spreadsheets’ trustworthiness, accuracy, and meaning. They said this information was needed to admit the spreadsheets under the evidence rules governing statements made outside court that are offered for their truth.

Court’s Analysis

Judge Parker agreed with Triadou that the questioning exceeded the court’s order. The court explained that foundational questions should have focused on how the spreadsheets were prepared, the source of their information, and whether the witness knew whether the information was reliable. Questions about documents other than the Tradestock spreadsheets, Sadykov’s interactions with representatives of MeesPierson, the general operations of UKB-6, relationships among companies, and details of transactions went beyond that permitted purpose.

The court held that the plaintiffs could have obtained testimony about the purposes of the transactions from other witnesses during discovery. The late addition of Sadykov was allowed for authentication purposes, not to expand discovery about the transactions or the companies listed in the spreadsheets.

Rulings

The sanctions motion was granted in part and denied in part. The request to strike Sadykov’s deposition was granted except for three specified portions: background questions; questions about UKB-6’s recordkeeping and whether the spreadsheets could qualify as business records; and questions about one transaction and the source of information about that transaction. Testimony elicited by defense counsel on pages 45 through 46 was also not stricken because the motion did not concern those questions.

The request to bar Sadykov from testifying at trial was denied. The court stated that the trial judge, Judge Alison Nathan, would decide whether and for what purpose Sadykov could testify and whether the remaining testimony was admissible.

The request for fees and costs connected with preparing for and conducting the deposition was denied in full. However, the court awarded Triadou attorney’s fees and costs associated with 50 percent of the deposition because the plaintiffs’ counsel exceeded the permitted scope and wasted time with improper questions. The court also granted Triadou’s request for fees and costs associated with the sanctions motion.

The court separately granted in part the motions to seal. The briefs and the deposition transcript could not remain entirely under seal, but portions discussing specific information on an exhibit concerning an ongoing criminal investigation could be redacted and filed under seal. The parties were directed to file redacted versions within seven days, and Triadou was directed to submit its fee application by March 20, 2020.