Nike, Inc. v. By Kiy LLC
- Victor Marrero
- 1:23-cv-02431
- U.S. District Court · Southern District of New York
- 7
Nike v. By Kiy, Judge Marrero overruled defense counsel’s objection to a discovery ruling denying a deposition-protection request.
The ruling affected By Kiy LLC and Nickwon Arvinger, their attorneys John Durrant and Zakari Kurtz, and the scheduling and handling of Arvinger’s deposition and counsel-withdrawal motions.
What happened
In Nike, Inc. v. By Kiy LLC, lawyers for By Kiy LLC and Nickwon Arvinger objected to a magistrate judge’s ruling about Arvinger’s scheduled deposition. They sought to postpone it so the defendants could find new lawyers and the current lawyers could seek permission to withdraw.
The magistrate judge denied the request to postpone the deposition but allowed the lawyers to file withdrawal motions for private court review. By the time the district court ruled, Arvinger’s deposition had begun and was expected to be completed or nearly completed.
Judge Victor Marrero overruled the objection. He said it was no longer a live issue and, alternatively, that the magistrate judge had not made a clear mistake or acted unlawfully. The parties were ordered to follow the schedule for the lawyers’ withdrawal motions.
The detailed version
- Nike, Inc. v. By Kiy LLC · No. 1:23-cv-02431
- Victor Marrero
- July 28, 2023
Background
Nike, Inc. was deposing defendants in the case. After the deposition of David Weeks on July 27, 2023, attorneys John Durrant and Zakari Kurtz said they learned information that implicated their professional and ethical duties as lawyers for By Kiy LLC and Nickwon Arvinger. Arvinger’s deposition was scheduled for the next morning.
Durrant and Kurtz filed an emergency motion asking Magistrate Judge Sarah L. Cave for a protective order postponing Arvinger’s deposition so By Kiy and Arvinger could retain new counsel. They also asked to file motions seeking withdrawal as counsel for private court review. Before Magistrate Judge Cave ruled, the lawyers filed an emergency objection in the district court. Magistrate Judge Cave later denied the request for a protective order but granted the request to file withdrawal motions for private review and set a briefing schedule for those motions.
Legal standard
Discovery disputes are generally non-dispositive, meaning they do not decide the parties’ underlying claims. A district judge may change a magistrate judge’s ruling on such a dispute only if it is clearly mistaken or contrary to law. Under Federal Rule of Civil Procedure 26(c), a party seeking a protective order must show good cause with specific facts, rather than general or conclusory statements.
Discussion and ruling
The court first concluded that the objection was moot because Arvinger’s deposition had begun and would be completed or nearly completed by the time the district court’s order was entered.
The court also considered the objection’s merits and found no basis to overturn Magistrate Judge Cave’s ruling. It agreed that Durrant and Kurtz had not provided specific facts explaining why an emergency protective order was necessary. Their filings relied on their assertion that continuing as counsel would compromise their professional and ethical duties. The court also noted that this was the second eleventh-hour emergency application filed by the defendants in the preceding three weeks, which raised credibility concerns.
The court therefore overruled the emergency objection to Magistrate Judge Cave’s July 28, 2023 discovery order. It directed the parties to comply with the briefing schedule for Durrant’s and Kurtz’s motions to withdraw as counsel and directed the clerk to terminate the objection filed at Docket Number 109.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.