Fleetwood Services, LLC v. Ram Capital Funding, LLC
- Lewis Liman
- 1:20-cv-05120
- U.S. District Court · Southern District of New York
- 2
In Fleetwood Services v. Ram Capital Funding, Judge Liman denied protection from depositions and ordered three witnesses to appear and answer questions individually.
The order directly affected Defendants and the three witnesses—Michelle Gregg, Jose DaSilva, and Robert Giardina—by requiring the witnesses to appear for depositions and assert any Fifth Amendment privilege question by question. It also preserved Plaintiff’s ability to challenge particular refusals to answer.
What happened
In Fleetwood Services, LLC v. Ram Capital Funding, LLC, three witnesses—Michelle Gregg, Jose DaSilva, and Robert Giardina—were scheduled for depositions. Defendants asked the court to cancel the depositions because the witnesses planned to invoke their right against self-incrimination, offering affidavits instead.
The court denied the request. It ruled that the witnesses had to attend, take the oath, and invoke the privilege separately for each question that might incriminate them. The court ordered Defendants to produce the three witnesses for depositions by May 14, 2021, and said Plaintiff could challenge particular refusals to answer.
Judge Liman also denied Defendants’ request for relief based on an alleged ethical violation because they offered no evidence of misconduct. The court did not decide the parties’ other discovery-related requests in this order and directed them to address those issues at a conference.
The detailed version
- Fleetwood Services, LLC v. Ram Capital Funding, LLC · No. 1:20-cv-05120
- Lewis Liman
- May 4, 2021
Background
Defendants moved for a protective order, which is a court order limiting or preventing discovery, to stop the scheduled depositions of Michelle Gregg, Jose DaSilva, and Robert Giardina. Defendants said each witness intended to invoke the Fifth Amendment right against self-incrimination when questioned about the case and offered to provide Plaintiff’s counsel with an affidavit stating that the witnesses would invoke that right.
Gregg was Richmond Capital Group’s designated representative for a deposition under Federal Rule of Civil Procedure 30(b)(6). DaSilva had been identified by Richmond as a person with relevant knowledge, and both Gregg and DaSilva were Richmond employees. Giardina was alleged to be Richmond’s owner.
Ruling
The court denied the motion for a protective order. It explained that a witness’s possible reliance on the Fifth Amendment does not excuse the witness from attending a deposition. The witness must appear, be sworn, answer questions that do not create a self-incrimination risk, and assert the privilege separately for each question that does create such a risk. A blanket refusal to answer all questions was not permitted.
The court ordered Defendants to produce Gregg, DaSilva, and Giardina for depositions on or before May 14, 2021. It also stated that a witness, rather than the witness’s attorney, must invoke the privilege. Plaintiff could challenge particular assertions by asking the court to compel answers, and the court noted that a factfinder might be able to draw a negative inference from a refusal to answer, although it expressly did not decide whether such an inference would be proper here.
The court also denied, to the extent Defendants sought it, relief based on an alleged ethical violation by Plaintiff’s counsel because Defendants offered no evidence of unethical conduct. The court did not rule in this order on Defendants’ requests to strike Richmond’s unaccepted offer of judgment, compel document production, or impose discovery sanctions. It directed the parties to address those matters at a later conference. Judge Lewis J. Liman also stated that the court would hear Defendants’ position on whether Plaintiff should receive reasonable expenses, including attorney fees, for opposing the motion.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.