Joffe v. King & Spalding LLP

Background

David A. Joffe, a licensed attorney representing himself, sued King & Spalding LLP over his termination. Joffe claimed that the firm terminated him in retaliation for raising ethical concerns while he was an associate. The firm maintained that it fired him for poor performance. This opinion addresses a discovery dispute, not the merits of that retaliation claim.

The parties expected as many as 10 current or former King & Spalding partners to testify about Joffe’s performance, the firm’s employment practices and policies, and the decision to terminate him. Two proposed witnesses were former partners Meredith Moss and David Fine. Joffe had not deposed either witness during the scheduled discovery period.

After the court allowed additional time for the depositions because the trial had been postponed during the COVID-19 pandemic, the parties disagreed about whether the depositions should occur in person or by video. Joffe argued that in-person questioning was necessary for him to observe the witnesses’ demeanor and eye movements. Moss and Fine, represented by Proskauer Rose LLP, opposed in-person depositions because they would require travel and several hours in an enclosed indoor setting during the pandemic.

Joffe’s Motion for Reconsideration

Joffe moved for reconsideration of the court’s prior decisions concerning the depositions. Reconsideration is an extraordinary request asking a court to revisit an earlier ruling when controlling law or facts were overlooked, new evidence became available, or a clear error or serious injustice occurred. The court explained that reconsideration is not available merely to reargue an issue already decided.

Joffe argued that Federal Rule of Civil Procedure 45 required any motion to quash or modify the subpoenas to be filed in the districts where the depositions would occur, and that this requirement deprived the Southern District of New York of subject-matter jurisdiction. He also argued that Moss and Fine had to file formal motions supported by evidence before objecting to in-person depositions. Finally, he challenged the court’s conclusions about the burden and health risks of in-person depositions and argued that the court should not rely on general facts about COVID-19 without further proceedings.

Court’s Analysis

The court rejected Joffe’s jurisdictional argument. It explained that the Federal Rules of Civil Procedure do not create or remove federal subject-matter jurisdiction. Rule 45 provides that a subpoena must issue from the court where the case is pending, and the court concluded that it therefore had authority to address subpoenas issued in its name. The court also distinguished the authorities Joffe cited, explaining that they involved different circumstances, including subpoenas issued by other courts before a 2013 amendment to Rule 45.

The court held that Joffe had waived his argument that Moss and Fine needed to file formal motions. Joffe and counsel for the witnesses had repeatedly asked the court to resolve the deposition-format dispute through teleconferences. The court also noted that Rule 45 permits a subpoenaed person to serve a written objection instead of filing a motion to quash, and that courts may resolve straightforward discovery disputes orally or through short orders.

The court then applied a balancing test for undue burden, weighing the usefulness of in-person depositions against the hardship imposed on the nonparty witnesses. It found that Moss’s and Fine’s testimony was unlikely to be central, that they were two of 10 potential witnesses expected to address similar subjects, and that Joffe had chosen not to depose them during the original discovery period.

The court further concluded that the proposed safety measures did not eliminate the health risks. The depositions would require interstate travel and several hours of indoor interaction among the witnesses, attorneys, court reporter, and others. Six feet of separation would not necessarily prevent transmission during prolonged indoor exposure, and masks and distancing would reduce the value of the in-person format for Joffe’s stated purpose of observing demeanor. The court concluded that the increased health risk outweighed the limited usefulness of in-person questioning.

Disposition

Judge Valerie Caproni denied Joffe’s motion for reconsideration. The court directed all interested parties to proceed with Moss’s and Fine’s depositions by video conference no later than July 15, 2020. It also directed the Clerk of Court to terminate the motions listed at docket entries 226 and 240.