The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
During the course of discovery in this multi-district antitrust
suit, in which plaintiffs allege that the defendants engaged in a
conspiracy to raise, fix, maintain or stabilize the price of
sulfuric acid in the United States in violation of Section 1 of
the Sherman Act, 15 U.S.C. § 1, plaintiffs deposed Kevin Cannon,
Kim Ross, and Tony DeSanti. The plaintiffs have characterized
them as "three of the most key witnesses in this litigation." I
previously rejected plaintiffs' arguments in support of an
additional deposition of Mr. DeSanti. Mr. DeSanti, who has
retired from defendant Falconbridge, lives in Canada, and is
beyond the defendants' control and the plaintiffs' subpoena
power. Plaintiffs have, accordingly, withdrawn that portion of
their motion. (Reply in Support of Plaintiffs' Motion to Compel
Deposition Testimony, at 6). Plaintiffs have resolved the issues
regarding Mr. Cannon's deposition with Mr. Cannon's counsel and
have withdrawn that portion of their motion as moot. (Reply in
Support of Plaintiffs' Motion to Compel Deposition Testimony, at
1 n. 1). That leaves Kim Ross, who was deposed in mid-April 2005
for almost 17 hours.
Despite having deposed Mr. Ross so extensively, the plaintiffs'
motion insists that Mr. Ross must be deposed again so that he can
decipher his handwritten journal entries and notes, which
according to plaintiffs, were taken concurrently with
"anti-competitive and collusive meeting and events at issue in
this case." According to the plaintiffs, the handwritten notes
produced by the Noranda defendants ran into the hundreds of
pages. (Plaintiffs' Motion to Compel Further Deposition
Testimony, at 3, 8). The notes had been produced by December of
2004, if not a good deal earlier.*fn1 Because of their
claimed criticality to the plaintiffs' case and the absence of
the evidence in any other form, the plaintiffs argue that it is
essential that they be allowed to take a supplemental deposition,
limited to four hours and 30 to 50 pages of notes, which would be
provided in advance of the renewed deposition. For the reasons
discussed below, plaintiffs' motion is denied.
The Previous Deposition of Kim Ross
Plaintiffs deposed Mr. Ross on April 14 and 15, 2005, in
Toronto, Canada. Mr. Ross has been in the employ of the Noranda
defendants for nearly 15 years and had the day-to-day
responsibility for the sale of sulfuric acid. He helped create
the joint venture among the Noranda defendants and was president
of Noranda Dupont LLC from 1998 to 2001. By agreement of counsel,
Mr. Ross's deposition exceeded indeed, more than doubled the
one-day, seven-hour time limit set by Rule 30(d)(2), Federal
Rules of Civil Procedure. Mr. Ross's deposition ran for about
eight hours on April 14th and eight hours and forty-five
minutes on April 15th. On the first day, plaintiffs began
their examination of Mr. Ross at 9:33 a.m., broke for lunch at
12:25 p.m. (Ross Deposition. at 7, 125), and continued from 1:25
to 6:42 p.m. (Deposition of Ross, at 126, 301). The sessions on the second day
ran from 9:49 a.m. to 12:54 p.m. (Ross Deposition. at 313, 432),
and from 2:05 p.m. until 7:45 p.m. (Ross Deposition at 433, 631).
The record makes clear that the issue of the illegibility of
Mr. Ross's notes and how to prioritize the time allotted to deal
with that issue and the myriad of others that would comprise the
deposition had been considered by plaintiffs' counsel. On the
morning of the first day of the deposition, she asked Mr. Ross to
decipher certain notes that she thought significant:
Plaintiffs' counsel: Okay, Could you for the record
read to me your notes as best you can into the
Defendants' counsel: Which notes?
Plaintiffs' counsel: These notes.
Defendants' counsel: All these notes?
Plaintiffs' counsel: Yes.
Defendants' counsel: You want him to read what's on
Plaintiffs' counsel: Yes. Unless you want to if you
have another way to do it. If you want to transcribe
it for me with his direction, that's okay, too, and
we don't have to waste time on the record. I just
want to make sure that we can read his writing.
Defendants' counsel: Why don't we consider that
option at lunch?
Plaintiffs' counsel: Okay. All right. Because what I
want to do is I want to make sure that I'm not that
I can read his handwriting, and the only way to do
that is to get him to either read it or transcribe it
Defendants' counsel: Okay. We'll consider that at
Plaintiffs' counsel: Okay.
(Ross Deposition. at 124-25). When the deposition resumed after lunch, neither the
plaintiffs' nor the defendants' counsel brought up the subject of
Mr. Ross's notes. The plaintiffs' counsel proceeded with
questioning, and did not mention the issue the rest of that
afternoon or the next day, until 7:34 p.m., when the deposition
The Videographer: This concludes today's proceedings
in the deposition of Kim Ross. The number of tapes
used today was four, in total for two days, eight.
We're going off the video record at the time is
Plaintiffs' counsel: David, I just want to put a
statement on the record. We had I had yesterday I
had said I had some handwritten notes that I believe
were Mr. Ross's but I wasn't sure and I couldn't read
the handwriting on them, and I asked you if you
wanted him to read them on the record or whether we
could we could get them transcribed and save the
time for him reading on the record, and you had told
me today that you wanted them read on the record.
Defendants' counsel: Or I wanted you to cover them on
Plaintiffs' counsel: Right. And since we're out of
time, where unless you want to reconsider
transcribing them, we are reserving our right to ask
him to come back to translate these these notes.
Defendants' counsel: You don't have a right to ask
him to come back. You had two full days. You had 14
hours of examination. You could have asked him to
review or translate those notes, like you have the
other notes that you used during the course. You made
the choice as to what to cover, you and your counsel.
* * *
Defendants' counsel: Well, as you know, you're
entitled to one day. We gave you two days without
fight fighting over it as a matter of
accommodation. You're not entitled to another day.
You've known about Mr. Ross. You've had his documents
for months and months and months. You could have
chosen what to cover with him. It shouldn't come to
any surprise to you that I disagree that you covered
your time appropriately. I think you could have
covered all this in one day, frankly. And we will not
produce Mr. Ross again without court order and we'll
vigorously oppose any efforts that you might make to
Plaintiffs' counsel: The other thing I just was going
to add about the notes is that I just found out the
middle of the day today that that you were not
agreeing to transcribe them. But also, I can't ask Mr. Ross questions about
them if I can't read them, and I can't read a lot of
them. So it's you know, I think you should
reconsider your position on transcribing them.
Defendants' counsel: Well, with respect to the notes,
I told you yesterday that you should cover any notes
with him that you wanted to cover in his deposition.
Plaintiffs' counsel: Well, I don't what to I don't
know whether I want to ask him about them if I can't
read them. That's the problem.
Defendants' counsel: Right.
Plaintiffs' counsel: It makes the process of
selecting documents in preparing for this deposition
rather impossible to do if you can't read the notes.
And I believe Mr. Ross kept extensive notes over a
very lengthy period of time and we were not able to
prepare for the deposition without being able to
interpret all his notes.
Defendants' counsel: Well, you've had the notes for
probably more than a year, certainly in most cases a
year and a half. You never you never made a request
to me in advance of this deposition with respect to
these notes or interpreting them.
(Ross Dep. at 626-27, 629-31).
Activity Following the Depositions
On May 26, 2005, the plaintiffs, without the court approval
required by Rule 30(a)(2)(B), served a notice for a second
deposition of Mr. Ross purportedly "pursuant to Rule 30(b) of the
Federal Rules of Civil Procedure." The notice advised that the
scope of questions at the further deposition would not be limited
to the "ascertainment of the text the witness wrote in various
handwritten notes produced in discovery," but would include, in
addition, "matters arising out of the content of such handwritten
notes." (Plaintiffs' Motion to Compel Further Deposition
Testimony, Ex. A) (Emphasis supplied).
On June 6, 2005, counsel for the Noranda defendants responded
to the notice with a letter formally objecting to the notice on
the grounds that it was "contrary to the Federal Rules of Civil
Procedure," as well as "prior agreements between counsel." (Noranda Defendants'
Opposition to Plaintiffs' Motion to Compel, Ex. 6). Plaintiffs
did not reply to this letter. Nearly a month later, however, on
July 1st the day discovery closed they filed the instant
"Motion To Compel Further Deposition Testimony From Kim Ross,