Windward Bora LLC v. Browne

Background

Windward Bora LLC moved for a protective order barring defendants from taking the deposition of its principal, Yonel Devico. Defendants filed a cross-motion seeking to require Devico’s deposition and to set deadlines for the parties’ depositions.

Defendants had explained that they sought a short deposition of Devico because the corporate representative previously produced by Windward under Federal Rule of Civil Procedure 30(b)(6) lacked knowledge or information about the acquisition of the note at issue. Windward argued that information about acquiring the note was irrelevant once it established that it possessed an original document signed by defendants, and characterized the requested deposition as a fishing expedition and harassment.

The court had previously rejected Windward’s position and directed Windward to produce Devico for a half-day deposition. The opinion also noted that whether Windward possessed an original document signed by defendants remained disputed, including after Windward located what it asserted was the original note and a handwriting expert inspected it.

Court’s Analysis

The court gave four reasons for denying the protective-order motion. First, the court had already ruled that defendants could take Devico’s deposition. Second, Windward’s motion was untimely and procedurally improper. Under Local Civil Rule 6.3, a motion for reconsideration or reargument must be filed within 14 days and identify matters or controlling decisions the court overlooked. Windward waited 24 days, styled its filing as a protective-order motion, and did not show that the court had overlooked anything. The court also stated that the filing did not comply with other applicable meet-and-confer and motion-practice requirements.

Third, the court explained that completely barring an oral deposition is unusual and requires a strong showing of good cause. The court found that requiring Devico to appear for a half-day or less was not unduly burdensome. Windward’s claim that Devico had no additional or specialized knowledge appeared only in its brief and was unsupported by a declaration or other admissible evidence. Because the authenticity of the signatures on the note remained disputed, the court could not conclude from those statements alone that Devico had no relevant testimony.

Fourth, the parties had previously arranged for Devico to be deposed before the two individual defendants. The court declined to require defendants to give up that deposition sequence because of Windward’s unsuccessful motion.

Ruling

Judge Barbara Moses denied Windward’s motion for a protective order. She granted defendants’ cross-motion to the extent that Devico had to appear for his deposition on or before June 18, 2021, and, if they had not already appeared for their depositions, defendants had to do so on or before June 25, 2021. The Clerk of Court was directed to close the motions at Docket Nos. 41 and 43.