United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
an action to recover funds which Plaintiff alleges were
fraudulently transferred to Defendant Rocky Point
International, LLC ("Rocky Point"). Presently
before the Court is Rocky Point's motion to quash
Plaintiff's notices of deposition and subpoenas directed
at two individuals. (Docket #46). The first is Dag Dvergsten
("Dvergsten"), whom Plaintiff seeks to depose in
both his individual capacity and as Rocky Point's
corporate representative under Federal Rule of Civil
Procedure 30(b)(6). (Docket #46-2 at 1-5). The second is
James Walden ("Walden"), Rocky Point's
attorney, whose testimony is sought as to certain topics
identified in Plaintiff's subpoena. See Id. at
was already deposed in both his individual and representative
capacities during the course of a similar case currently
pending in the Southern District of Texas involving the same
parties and attorneys. (Docket #47 at 12). As such, Rocky
Point claims that Court authorization is required to take his
deposition a second time, pursuant to Rule 30(a)(2)(A)(ii).
Point is mistaken. The Rule says that a person may not be
deposed a second time "in the case" without the
Court's permission. Fed.R.Civ.P. 30(a)(2)(A)(ii). It is
plainly confined to successive depositions occurring in
connection with a particular action pending in a particular
judicial district. Whatever degree of identity exists between
the parties and claims in this action and the Texas
proceedings, they are not the same case. Likewise, whether
Plaintiff's counsel "contemplated" during the
prior deposition that it would be used in other jurisdictions
is of no moment. (Docket #47 at 7). The language of the Rule
is clear; there has been no deposition of Dag Dvergsten,
individually or as corporate representative, in connection
with this action. See In re Sulfuric Acid Antitrust
Litig., No. 03 C 4576, 2005 WL 1994105, at *2 (N.D. 111.
Aug. 19, 2005) (the Federal Rules should be construed
according to their plain meaning). Thus, Plaintiff need not
seek the Court's leave to take his deposition. See
Collins v. Progressive Mich. Ins. Co., CIVIL ACTION NO.
15-cv-13651, 2017 WL 1177684, at *2 (E.D. Mich. Mar. 30,
2017) (deposition in related state-court action did not bar
later deposition in federal action); Opperman v. Path,
Inc., Case No. 13-cv-00453-JST, 2015 WL 5852962, at *2
(N.D. Cal. Oct. 8, 2015) (deposition in prior related federal
action was not in the same "case" for purposes of
Walden, Rocky Point argues that all of his potential
testimony is privileged under the attorney-client privilege
and, moreover, he will be on vacation on the date that was
set for the deposition. (Docket #47 at 5-6). Plaintiff
counters that Walden is a fact witness in this case, as he
had communications with the owner of the Texas entities that
transferred funds to Rocky Point. (Docket #49 at 3-4).
Specifically, Plaintiff has alleged that Walden threatened
that person with legal action because he believed that Rocky
Point had not received all of the money it was supposed to
have received. See (Docket #32 ¶ 23).
Court finds Rocky Point's position unpersuasive. While it
may assert the attorney-client privilege where questioning
invades privileged communications, Plaintiff has identified
matters in which Walden is merely a fact witness.
Communications between Walden and the owner of the Texas
entities do not fall within the privilege, as such
communications were not between Walden and his client and did
not constitute the provision of legal advice. See United
States v. EDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir.
2007). To the extent Walden has non-privileged testimony to
offer, Plaintiff has a right to obtain it.
the Court takes Plaintiff at his representation that he is
open to rescheduling Walden's deposition to accommodate
Walden's vacation. (Docket #49 at 4). The parties will
promptly meet and confer to determine a new, mutually
agreeable date for the deposition. The Court cautions,
however, that it will not modify its scheduling order in
light of the rescheduled deposition. The Court's
deadlines were set long ago, see (Docket #31), and
the parties have had ample time to conduct discovery. If
Walden's deposition needs to be taken before the
dispositive motion deadline, then that should inform the
parties' scheduling discussions.
the Court will deny Plaintiff's request for sanctions
against Rocky Point. (Docket #49 at 4-5). First, Rule 30(d),
which Plaintiff cites, only empowers a court to sanction a
party after it actually fails to appear for a deposition.
Fed.R.Civ.P. 30(d)(1)(A). As of the time of Plaintiff's
request, that had not occurred. Second, Plaintiff's
argument in favor of sanctions is perfunctory and
underdeveloped. He merely seeks to ride the coattails of the
Court's prior dissatisfaction with Rocky Point.
See (Docket #49 at 4-5). To be clear, both parties
in this action would do well to behave cooperatively in order
to ensure the expeditious resolution of this matter. Thus,
the Court finds that the circumstances presented do not
warrant the imposition of sanctions. Fed.R.Civ.P. 37(a)(5)(B)
(attorney's fees cannot be awarded when a motion to
compel discovery is denied if "other circumstances make
an award of expenses unjust").
IT IS ORDERED that Defendant Rocky Point International,
LLC's motion to quash (Docket #46) be and the same is
his conclusion means that the Court
need not consider Rocky Point's argument that leave for
Dvergsten's deposition should be denied because the
second deposition will be largely duplicative of the first,
(Docket #47 at 5), or because Dvergsten's prior
deposition may be used against him in ...