AmTrust North America, Inc. v. KF&B, Inc.

Background

AmTrust North America, Inc., Wesco Insurance Company, Inc., and Technology Insurance Company, Inc., collectively referred to as AmTrust, moved to introduce at trial deposition testimony from Fabian Burstyn, Andrew Charrette, Jerrell Fort, Masoud Shahri, Michael Dubin, Michael Howery, Lawrence Kalior, and James Leatzow, along with certain exhibits. AmTrust stated that Burstyn, Charrette, and Fort were former AmTrust employees who were no longer under AmTrust's control. It also stated that Charrette, Fort, and Shahri lived more than 100 miles from the court and therefore could not be compelled to attend trial by subpoena.

KF&B, Inc., doing business as KF&B Program Managers Insurance Services, opposed the request concerning some witnesses. KF&B argued that AmTrust had not made efforts to obtain the attendance of Burstyn, Charrette, or Shahri. It relied on Federal Rule of Evidence 804, which permits former testimony in certain circumstances when a witness is unavailable, and argued that AmTrust had not shown that these witnesses were unavailable through reasonable efforts.

Rules and analysis

The court explained that deposition testimony may also be admitted under Federal Rule of Civil Procedure 32(a)(4). That rule permits use of a deposition when, among other circumstances, a witness is more than 100 miles from the place of trial or the offering party could not obtain the witness's attendance by subpoena. The court stated that this rule and the evidence rule are alternative, independent bases for admitting deposition testimony, so testimony may be admitted if it satisfies either rule and would otherwise be admissible if the witness appeared and testified.

The court admitted Charrette's and Shahri's deposition testimony because they were more than 100 miles from the Southern District of New York trial location and could not be compelled to attend under the subpoena rule. The court stated that it was not necessary to determine whether they were nonparty witnesses because the 100-mile limit applied to parties and nonparties alike. The court excluded Burstyn's deposition testimony because AmTrust offered no evidence that he lived outside the court's subpoena power or that AmTrust had made efforts to obtain his trial testimony. The court found that AmTrust's statement that it anticipated Burstyn would not voluntarily comply with a subpoena was insufficient to show that he was unavailable.

Specific deposition-designation rulings

For Charrette's April 30, 2019 deposition, the court overruled several objections, sustained objections to Charrette Deposition 102:3-7 and 103:19-23, and admitted or allowed related testimony and Exhibit 11 under the rule of completeness in specified instances. The court also stated that it would receive any Charrette testimony offered by KF&B to show Charrette's alleged lack of familiarity or involvement with the Program or the MPA.

For Fort's April 16, 2019 deposition, the court overruled the objection to Fort Deposition 52:5-13 and sustained the objection to Fort Deposition 111:20-25. The opinion states that KF&B agreed Fort was unavailable but sought to exclude portions of his testimony on other grounds.

For Howery's April 25, 2019 deposition, the court directed that specified questions or portions of answers be received, overruled the objection to Howery Deposition 293:20-21, and struck Howery Exhibit 9. For Howery's June 25, 2019 deposition, the court allowed specified testimony or questions, allowed certain related testimony about KF&B's underwriting-document storage system if offered under the rule of completeness, struck Howery Deposition 210:22, and struck Howery Deposition 95:5-96:21 under Federal Rule of Evidence 403.

For Kalior's April 2, 2019 deposition, the court overruled several objections, admitted related testimony or material under the rule of completeness in specified instances, and sustained the objection to Kalior Deposition 180:16-25. For Shahri's January 9, 2019 deposition, the court sustained the objection to Shahri Deposition 132:10-134:11, overruled another objection while admitting related testimony under the rule of completeness, and declined to receive Shahri Exhibit 24. The opinion notes that there were no hearsay objections to the deposition designations of Kalior or Howery. The court stated that it would address the two defense experts in a separate order.

Disposition

The court granted in part and denied in part AmTrust's motion to introduce deposition testimony and certain exhibits at trial. It directed the Clerk of Court to close the docket entries associated with the motion and KF&B's opposition.