Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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. Case)3:O3-cv-_OO369—DJS Document 29-9 Fnled O1/30/2004 Page1 0f 3
NotR¤portedi11F,Supp.2d ‘ ‘ Psgcl
91 A.F.T.R.2d 2003-1-430 -·
(Cite as: 2003 WL`1874738 (D.C¤11.u.))
I·I _ , _ .
United States District Court,
D. Connecticut.
n , U SETH CO. ING., Plaintiff,
- v.
UNITED STATES GF AMERICA {COMMISSIONER OF THE INTERNAL REVENUE SERVICE)
Defendant. -
No. 3:01CVl5B4{PCD). 3:02CV1049{PCD).
March 3,_2003.
_ Kerry Marc Wisser, Richard P, Weinstein, Weinstein-a Wisser, P,C., West Hartford,
CT, for Plaintiff.
Richard P. Weinstein, Weinstein a wisser, P.C., West Hartford, CT, for
Consolidated Plaintiff.
Karin E. Wozniak, U.S. Department of Justice, Washington, DC, Patrick F. Caruso,
U.S. Attorney's Office, New Haven, CT, for Defendant.
RULING QN PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND MOTION TO OUASH SUEPOENAS ‘
I ~ DUCES TECOM
- DORSEY, J.
*1 Plaintiff DDC moves for a protective order and-to quash the subpoenas duces
tecum dated January 13, 2003, directed to Gary Pierce, Mary Catherine Pierce, Derek
Pierce, and C. David Weeks, arguing that these four individuals were previously
deposed in a separate action (Seth Co. v. United States of America, 3:0iovi5s4).
For the reasons set forth herein, Plaintiff's motion is denied.“
I. Background · _`
On September S, 2002, this Court granted Plaintiff's motion to consolidate this
case with Seth Co. v. United States of America, 3:0lCvl5B4. Before these actions
were consolidated and in relation to litigation concerning Seth Co., the Government
deposed Mary Pierce (June 19, 2002), Derek Pierce (June 19, 2002), Gary Pierce
(June 20, 2002), and C. David Weeks (July 1, 2002). During the course of these
P depositions, the Government questioned each witness about issues regarding DDC
I Limited Partnership (“DDC"), in order to investigate whether Seth Co. was a
nominee, alter ego, or transferee of Gary Pieroe. H
On June 20, 2002, DDC filed its complaint against the United States. ThE U.S.
Department of Justice Tax Division received the complaint on July 3. 2002, after
_ the Seth Go. depositions had been taken. On July 24, 2002, DDC filed its amended
_complaint. Defendant contends that the amendment raised factual issues not raised
by the original complaint, which was jurisdictionally defective. Def. Response to -
Pl. Mote for Protective Order and Mot. to Quash Subpoenas Duces Tecum. p. 2
(docketed February 2l, 2003).` ·J.
Plaintiff.argues that the Government asked ample questions about DDC during the
. Seth Co. depositions, and that any further depositions of these four witnesses .
W¤¤1<1. ¤¤¤¤¤1¤¤*1e "sr-¤¤Y¤·¤¤s, Dppftssion, undue burden [and] expense" and would _
‘ be "harassment of`a witness." Pl. Mot. for Protective Order and Mot. To Ouash
- »~Suhpoenas Duces Tecum, p. 4 (January 22, 2003). Defendant argues that, at the time
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(Cite as: 2003 WL 1874738 (D.C¤m1.))
of the Seth Co. depositions, there was no understanding or agreement that it would
cover the issues raised by the DDC action (especially as Defendant wes not aware of
` the DDC action until after the depositions, and as the amended complaint in the DDC
action was not filed until after the Seth Co. depositions concluded). Def. Response
to P1. Mot. for Protective Order and Mot. to Quesh Subpoenas Duccs Tecum, p. 3
(docketed February 21, 2003). Defthédnt contends that it has not had an opportunity
to depose these four witnesses with respect to the claims and defenses raised in
the present DDC actioni Id. According to Defendant, it asked the witnesses)
questions about DDC during the Seth Cb. depositions to the extent that this was
relevant to whether Seth Co. was a nominee, alter ego or transferee of Gary Pierce.
Id. Defendant argues that it has not had a chance to depose these witnesses
T!§¤Tdi¤E tho 5D€¤ifi¤ Cldibs of the DDC action (whether DDC is a nominee, alter
ego or transferee of Gary Pierce). fd.
II. Discussion) ,
`*2 Federal gale of Civil Procedure zggc) requires that a party demonstrate “good
cause" in order to obtain a protective order. "Where ... the [discovery is]
relevant, the burden is upon the party seeking ... a protective order to show good
cause." Penthouse IHC*1, Ltd. v. Playboy EHEQFQ., 663 F.2d 371, 39l (2d Cir.lPHl)
(citation omitted); see also Fed. R. Civ. P. 25(c); Dove v. Atl. Capital Corp., 963
F.2d 15, l9 (2d Cir.l§g2) (burden is on moving party to show good cause). Rule
2G(c), however, "is not a blanket authorization for the court to prohibit
disclosure of`information whenever it deems it advisable to do so, but is rather a
grant of power to impose conditions on discovery in order to prevent injury, T
harassment, or abuse of the court’s processes," Bridge C.A.T. Scan Assocs, v,
Tecnnioare corp., 710 F.2d 940, g4a—45 (2d Cir.19s3). Fed R. Civ. P. 45 provides
that "[a] party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or expense on a
person subject to that subpoena." Ped.R.Civ.P. Rule s5(c)§1).
Here, Plaintiff argues that allowing these depositions to go forward would impose
an undue burden and oppress the deponents. Specifically, Plaintiff states that "it
is not disputed that the government has already explored in considerable depth all
aspects of the operation of DDC and its relationship to the various individuals and
entities in issue." Pl. Mot. for Protective order and Mot. to Quash subpoenas Dunes
TQCUM, p. 3 (January 22, 2003) (emphasis added). Plaintiff concludes that."further
I inquiry would be purely duplicative of prior document and deposition discovery."
Id. Defendant's opposition brief indicates that, contrary to Plaintiff's argument,
it is disputed that Defendant did not fully explore all aspects of DDC‘s operation
and its relationship to these deponents. Def. Response to Pl. Mot. for Protective ‘
order and Mot, to Quash Subpoenas Duces Tecum, p. 3 (docketed February 21, 2003).
Defendant argues that it has not had a chance to depose these witnesses regarding ·
the specific claims of the DDC action (-whether DDC is a-nominee, alter ego or
transferee of Gary Pierce). Id. More specifically, Defendant indicates that it did
not question Gary Pierce about specific loans and capital contributions allegedly
made by his wife to DDC, and that it did not question him about specific loans made
by DDC to Seth Co. Id. Furthermore, none of the Seth Co. deponents were questioned
. about DDC'e account with Charles Schwab. Id; Therefore, Defendant has identified
1specific`areas of inquiry that were not covered, or were not covered in sufficient
depth (because Defendant did not have notice of the DDC action), regarding the DDC
claim.` Plaintiff concedes that "if the government could identify new areas of
inquiry prompted as a result of any discovery in the DDC case or otherwise,-one
could certainly understand how the subpoena and proposed depositions ... would be
·proper and acceptable ."_Pl. Mot. for Protective Order and Mot. To Quash Subpoenas
‘ Duces Tecum, p. 3 (January 22, 2003). -
,*3 Furthermore. the cases cited by Plaintiff do not support Plaintiff's claim. For
example, in Miscellaneous Docket Matter # 1 v. Miscellaneous Docket Matter # 2, two
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separate plaintiffs frem different states (Celerade and Flerida) sued a cempany,
alleging separate Title VII and Equal Pay Act actiens. lg? F.3d 922, 924 [Sth `
Cir.1§99). Ceunsel fer plaintiffs and aereeaaae agreed beferehand that depesitiens
taken in either ef the cases ceuld be used in either_case. Id. A cempany efficial
was depesed fer twe days in the Celerade ease, and eeunsel fer beth plaintiffs were
present. Id. Befere the secend day, the cempany’s ceunsel requested the Flerida
ceunsel te ask any questiens at the Celerade depesitien. Id, After the secend day,
[the Flerida plaintiff*s] ceunsel stated he had ne further questiens and 'wanted te
cenclude the depesiticn in its entirety." ' Id. Later, when Flerida plaintiffs
served a suhpeena en the same cempany efficial, the ceurt quashed the subpeena,
stating that plaintiffs had the eppertunity te ask the questiens they new seught te
ask, but did net de se. Id. at 925. The present case is distinguishable, because
Plaintiff and Defendant did net agree beferehand that this weuld he the sele
eppertunity te questien the depenents abeut DDC._Here, the DDC aetien had just
eemmeneed areund the time ef.the Seth Ce. depesitiens, and DDC‘s amended cemplaint
was net filed until after the depesitiens had cencluded. 9 -
Plaintiff argues that liberal discevery dees Vnet justify an examinatien which can
serve ne useful purpcse in furthering the defendants cause ether than te afferd an
eppertunity te ven and harass an eppesing litigant.“ New Sanitgpg Tewel Supply, .
Inc. v. Censelidated Laundries Cegp., 24 F.R.D. iss, Igg §s.D.N.Y.i959). Plaintiff
cites Campbell v. American Fabrics Ce., a case which invelved multiple litigatien
between the same parties, but the Campbell ceurt allewed secend depesitiens ef the
same parties te the extent they were net duplicative ef prier depesitiens. 3 F.R.D.
3, 4 gE.D.N.Y.IL.943). ,
Plaintiff has failed te shew geed cause why a pretective erder sheuld he granted.
Defendant dees net seek these depesitiens te ven er harass the depenents, and has
identified specific areas ef inquiry which it did net cever (er did net cever in
sufficient depth. as it did net knew ef the present DDC seticn) in the Seth Ce.
depesitiens. M _
III. Cenclusien ~ N
Plaintiff's metien fer a pretective erder and te quash the subpeenas duces tecum
(Dee. Ne. 51) is denied. `
`SD ORDERED. ` l i _ ,
2003 WL 1B7473B (D.Cenn,). Sl A.F.T.R.2d 2003-1430 .
END OF DDCUM NT, I -
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