Cooperman v. One Bancorp

134 F.R.D. 4, 1991 U.S. Dist. LEXIS 1998
CourtDistrict Court, D. Maine
DecidedFebruary 14, 1991
DocketMaster Civ. File No. 89-0315 P
StatusPublished
Cited by31 cases

This text of 134 F.R.D. 4 (Cooperman v. One Bancorp) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooperman v. One Bancorp, 134 F.R.D. 4, 1991 U.S. Dist. LEXIS 1998 (D. Me. 1991).

Opinion

MEMORANDUM OF DECISION AND ORDER ON MOTIONS FOR DISCOVERY ORDERS

GENE CARTER, Chief Judge

Plaintiffs bring this action against The One Bancorp (a bank holding company), Ernst & Young (One Bancorp’s accounting firm), and individual directors and officers [7]*7of One Bancorp. Plaintiffs allege that Defendants knowingly or recklessly failed to disclose material adverse information concerning One Bancorp’s financial performance and condition. Plaintiffs allege that Defendants’ failure to disclose that information artificially inflated the market price of One Bancorp’s common stock and convertible debentures. Plaintiffs further allege that Defendants’ nondisclosure deceived Plaintiffs and the investing public regarding One Bancorp’s financial condition, causing Plaintiffs to purchase or otherwise acquire One Bancorp stock or convertible debentures at inflated prices. Plaintiffs also assert that Arthur Young, the predecessor of Defendant Ernst & Young, falsely stated in its audit opinions and reports that its examinations of One Bancorp’s financial statements had been conducted in accordance with Generally Accepted Auditing Standards and that the financial statements fairly presented One Bancorp’s financial position and results in accordance with Generally Accepted Accounting Principles.

Plaintiffs’ four-count consolidated amended complaint alleges: (I) violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder; (II) violations of Section 20(a) of the Securities Exchange Act of 1934; (III) common law fraud; and (IV) negligent misrepresentation.

The Court now has before it three discovery disputes. First, Defendant Ernst & Young moves to compel Plaintiff Green to reappear to answer questions that he refused to answer at his first deposition. In the same motion, Ernst & Young seeks an order compelling Plaintiffs to answer numerous interrogatories.

Plaintiffs have filed two motions to compel production of documents. The first seeks an order compelling Defendant One Bancorp and the individual Defendants to produce documents in accordance with Plaintiffs’ first set of requests for production of documents. Plaintiffs’ second motion seeks a similar order against Defendant Ernst & Young.

I. Motion of Defendant Ernst & Young

A. Interrogatories

Ernst & Young seeks an order compelling Plaintiffs to answer its first set of interrogatories. Plaintiffs objected to most of the interrogatories propounded by Ernst & Young on the grounds that they were premature, unduly burdensome, and vexatious. In its memorandum in support of its objection to the motion to compel, Plaintiffs argue that these interrogatories are “contention” interrogatories, and that Defendants will not be prejudiced by having to wait for answers until after Plaintiffs have completed all of their discovery. Plaintiffs assert that “[i]n order to avoid waste of substantial time, money and energy, adequate opportunity for discovery should be permitted before requiring a party to answer contention interrogatories.”

The Federal Rules of Civil Procedure contemplate that “[ujnless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party’s discovery.” Fed.R.Civ.P. 26(d). The Rules also provide that “[a]n interrogatory otherwise proper is not objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time.” Fed.R.Civ.P. 33(b). Rule 33(b) expressly authorizes contention interrogatories which are “otherwise proper,” but the Court, in its discretion, may allow answers to that type of interrogatory to be deferred until other discovery is complete.

After careful consideration of the written submissions and other materials on file, the Court finds no sufficient justification to grant Plaintiffs the delay they seek and the request is therefore DENIED. The Court strongly suspects that counsel for Plain[8]*8tiffs have expended more time in arguing this motion than would have been necessary to answer the interrogatories in the first instance. Consistent with Rule 11 of the Federal Rules of Civil Procedure, Plaintiffs must have some factual basis for the allegations in their complaint. Plaintiffs must answer Ernst & Young’s interrogatories with such information as they now possess; furthermore, Plaintiffs should supplement their responses to reflect new information developed as their own discovery progresses. See Fed.R.Civ.P. 26(e). Each party shall bear his own costs associated with this portion of Ernst & Young’s motion to compel production.

B. Deposition of Plaintiff Green

Ernst & Young asserts that Green, on the advice of counsel, failed to answer 92 questions at his first deposition. Counsel for Green objected to numerous questions posed at the deposition on the basis of attorney-client privilege, the work product rule, and relevancy (claiming that the questions were “beyond the scope of discovery”). In opposing this motion, Plaintiff Green advances only the relevancy objection.

Federal Rule of Civil Procedure 30(c) provides that at a deposition, evidence to which objection has been made “shall be taken subject to the objection.” In rare circumstances, upon a showing that the deposition examination is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the deponent, the deponent or his counsel may adjourn and move for an order halting the deposition or limiting its scope. See Fed.R.Civ.P 30(d).

The Court has carefully examined the transcript of Green’s deposition and concludes that Green should appear to resume the deposition.1 This portion of Ernst & Young’s motion is GRANTED. The Court’s examination of Green’s deposition transcript, however, reveals that participating counsel require guidance as to how that deposition is to be conducted. Green shall appear to be deposed by Ernst & Young within twenty (20) days of the date of this order. Counsel for Green shall allow Green to answer all questions, absent a claim of privilege, and counsel shall state on the record a fact-specific basis for any claim of privilege sufficient to permit the Court to determine the validity of the claim.

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Bluebook (online)
134 F.R.D. 4, 1991 U.S. Dist. LEXIS 1998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooperman-v-one-bancorp-med-1991.