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IN RE SULFURIC ACID ANTITRUST LITIGATION

September 7, 2005.

In Re SULFURIC ACID ANTITRUST LITIGATION.


The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

INTRODUCTION

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 Plaintiffs have, accordingly, withdrawn that portion of their motion.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 Cannon's counsel and have withdrawn that portion of their motion as moot.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.

  I

  FACTUAL BACKGROUND

  A

  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 record?
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 these notes?
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 for me.
Defendants' counsel: Okay. We'll consider that at lunch.
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 ended:
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 7:34 p.m.
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 the record.
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 get one.
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).

  B

  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, Kevin ...


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