In re Tether and Bitfinex Crypto Asset Litigation

Background

The plaintiffs requested permission to take a second deposition of Giancarlo Devasini, identified in the opinion as the chief financial officer of Bitfinex and Tether. The request sought additional testimony on six topics, including payables owed by Bitfinex to Tether in connection with USDT issuances, assets accepted by Tether for USDT, public representations, USDT reserve investments, loans and credit lines, and Crypto Capital.

Federal Rule of Civil Procedure 30 generally limits a deposition to seven hours and requires court permission for another deposition of a witness who has already been deposed. The plaintiffs therefore had to show “good cause,” meaning a sufficient factual reason, for extending or reopening the deposition.

Parties’ positions

The B/T Defendants opposed the request. They argued that the plaintiffs had already obtained substantial testimony from Devasini, other individual witnesses, and Bitfinex and Tether witnesses designated to testify for the entities. They also argued that the plaintiffs waited too long to seek additional testimony, despite knowing that Devasini would be unavailable during part of the period before the October 23, 2023 fact-discovery deadline.

The court’s text states that the plaintiffs asserted, among other things, that Devasini had unique knowledge of the requested topics. The court found that the plaintiffs did not provide a specific basis to discredit the B/T Defendants’ representations that Devasini had given sufficiently detailed testimony, and did not argue that he had prevented the deposition from proceeding appropriately.

Court’s reasoning

The court concluded that the plaintiffs had not established good cause. First, they waited almost a week after the October 5 deposition to file the request, even though counsel had discussed the issue with the B/T Defendants’ counsel at the end of the deposition. The court considered the delay especially significant because fact discovery was about to close and the court had repeatedly told the parties to raise discovery disputes promptly.

Second, the court found that the plaintiffs had not shown that Devasini possessed unique information that had not already been covered. To the extent earlier testimony suggested that Devasini might have relevant knowledge, the court said the plaintiffs were responsible for using their allotted deposition time to focus on those subjects rather than on topics the court had previously found to be of marginal relevance. The court also found that the parties’ disagreement about the deposition of the Anonymous Trader did not affect the analysis of the Devasini request.

Disposition

Judge Katherine Polk Failla denied the plaintiffs’ request to reopen Devasini’s deposition. The court reminded the parties to use the remaining time before the October 23 fact-discovery deadline carefully and noted a discovery conference scheduled for October 31, 2023.

The clerk was directed to keep docket entries 468 and 473 viewable only by the court and the parties. The clerk was also directed to terminate the pending motions at docket numbers 467, 469, and 472.