Debevoise orbs gumernttt & Plimpton New York, NY 10001 +1212 909 6000 October 16, 2023 MEMO ENDORSE BY ECF AND EMAIL The Honorable Katherine Polk Failla United States District Court for the Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007 Re: In re Tether and Bitfinex Crypto Asset Litigation, No. 19 Civ. 9236 (S.D.N.Y.) (KPF) Dear Judge Failla: We write on behalf of the B/T Defendants in opposition to Plaintiffs’ October 11, 2023 motion to compel. (Dkt. No. 468.) Plaintiffs have filed yet another last-minute, meritless discovery motion, this time demanding a second day of deposition testimony from Giancarlo Devasini, the CFO of Bitfinex and Tether. Plaintiffs utterly fail to demonstrate the requisite “good cause” to extend Mr. Devasini’s deposition beyond the seven hours provided by the Federal Rules. Plaintiffs elicited substantial testimony on each and every one of the topics they cite in their motion — from Mr. Devasini himself, other individual witnesses, and the Bitfinex and Tether Rule 30(b)(6) designees. Plaintiffs’ motion is further undermined by the fact that they wasted substantial portions of Mr. Devasini’s deposition questioning him on topics that have no relevance to their claims. Plaintiffs’ motion should also be rejected because it effectively seeks — yet again — an extension of the October 23, 2023 fact discovery deadline. Plaintiffs chose to wait until October 5 to depose Mr. Devasini and then delayed filing the instant motion for another week, despite having been notified in August that Mr. Devasini is not available between October 13 and 23. As an initial matter, there is no merit to Plaintiffs’ assertion that Mr. Devasini has “unique knowledge” of the six topics identified in their motion, or that he and other witnesses have not already provided substantial testimony on those topics. (Dkt. No. 468 at 1-2.) See Jibowu v. Target Corp., 2018 WL 5624145, at *2 (E.D.N.Y. Oct. 30, 2018) (no “good cause” where party had deposed a witness “for seven hours and questioned her about each of the areas 1t now wishes to re-examine”). In fact, each of these topics has been thoroughly covered in multiple depositions. Notably, the payables that Bitfinex owed to Tether in connection with USDT
1 See, e.g., Payables (Dkt. No. 468-7, Devasini Tr. at 73-82; Ex. 1, Ardoino Bitfinex 30(b)(6) Tr. at 37-66; Dkt. No. 468-1, Potter Tr. at 241-42; Dkt. No. 468-6, Hoegner Bitfinex 30(b)(6) Tr. at 94-102), Assets accepted by Tether for USDT (Ex. 2, Ardoino Tether 30(b)(6) Tr. at 45-55, 165-75; Ex. 1, Ardoino Bitfinex 30(b)(6) Tr. at 18, 37-41), Public representations (Ex. 3, Hoegner Tether 30(b)(6) Tr. at 11-36, 67-128; Dkt. No. 468-1, Potter Tr. at 92-96, 103-57, 182-203, 215-40; Dkt. No. 468-5, Hoegner Tr. at 286-93), USDT reserve investments (Ex. 3, Hoegner Tether 30(b)(6) Tr. at 37-66), Loans and credit lines (Dkt. No. 468-7, Devasini Tr. at 113-32; Ex. 2, Ardoino Tether 30(b)(6) Tr. at 162-76, 194-97; Ex. 1, Ardoino Bitfinex 30(b)(6) Tr. at 115-22, 252-54), Crypto Capital (Dkt. No. 468-7, Devasini Tr. at 203-87; Ex. 3, Hoegner Tether 30(b)(6) Tr. at 109, 155-66; Dkt. No. 468-5, Hoegner Tr. at 182-204).
www.debevoise.com
issuances was the topic of the Court’
Fried, even though the Court observed in February that “the ” the agreed topics and, in several instances, directly contrary to the Court’s and Bitfinex’s loans of USDT despite the Court’s express
Plaintiffs cannot identify any information regarding “Bitfinex’s finances solvency and ability to pay amounts owed to Tether’s reserves,” that they have not already Plaintiffs’ ow Devasini’s testimony on that topic confirmed that Bitfinex’s balances, net of customer assets, were always sufficient to x’s “total assets and liabilities,” those figures are obviously not something Mr. Devasini Contrary to Plaintiffs’ assertions, the B/T Defendants have Plaintiffs’ implication that numerous witnesses pointed to Mr. Devasini as having “unique knowledge” 62 (“I might start with Giancarlo Devasini,” but “I’m not sure that’s the ultimate person that would be able to answer.”)), Assets accepted by Tether for USDT (Dkt. No. 468 47 (“I would think Potentially Phil Potter.”)), USDT reserve investments (Dkt. No. 468 271 (testifying “I might speak to Sylvano DeStefano, the former CIO of Tether,” and upon further questioning “I’d probably make JL my first stop” and “Possibly Mr. Devasini, but Sylvano would be my first stop.”)), Credit 15 (“I would ask . Potter.”)). Plaintiffs’ suggestion that this information was in Mr. Devasini’s notebook is
Plaintiffs’
Plaintiffs’ claims
Plaintiffs’ Anonymous Trader’s counsel did n the Anonymous Trader for more than four hours, in breach of two Court orders and the parties’ ’ “maneuver[] to lim Plaintiffs’ time” they “anticipated going longer” and “streamlined” their questioning “as a given the time difference.” (Ex.
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Debevoise orbs gumernttt & Plimpton New York, NY 10001 +1212 909 6000 October 16, 2023 MEMO ENDORSE BY ECF AND EMAIL The Honorable Katherine Polk Failla United States District Court for the Southern District of New York Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007 Re: In re Tether and Bitfinex Crypto Asset Litigation, No. 19 Civ. 9236 (S.D.N.Y.) (KPF) Dear Judge Failla: We write on behalf of the B/T Defendants in opposition to Plaintiffs’ October 11, 2023 motion to compel. (Dkt. No. 468.) Plaintiffs have filed yet another last-minute, meritless discovery motion, this time demanding a second day of deposition testimony from Giancarlo Devasini, the CFO of Bitfinex and Tether. Plaintiffs utterly fail to demonstrate the requisite “good cause” to extend Mr. Devasini’s deposition beyond the seven hours provided by the Federal Rules. Plaintiffs elicited substantial testimony on each and every one of the topics they cite in their motion — from Mr. Devasini himself, other individual witnesses, and the Bitfinex and Tether Rule 30(b)(6) designees. Plaintiffs’ motion is further undermined by the fact that they wasted substantial portions of Mr. Devasini’s deposition questioning him on topics that have no relevance to their claims. Plaintiffs’ motion should also be rejected because it effectively seeks — yet again — an extension of the October 23, 2023 fact discovery deadline. Plaintiffs chose to wait until October 5 to depose Mr. Devasini and then delayed filing the instant motion for another week, despite having been notified in August that Mr. Devasini is not available between October 13 and 23. As an initial matter, there is no merit to Plaintiffs’ assertion that Mr. Devasini has “unique knowledge” of the six topics identified in their motion, or that he and other witnesses have not already provided substantial testimony on those topics. (Dkt. No. 468 at 1-2.) See Jibowu v. Target Corp., 2018 WL 5624145, at *2 (E.D.N.Y. Oct. 30, 2018) (no “good cause” where party had deposed a witness “for seven hours and questioned her about each of the areas 1t now wishes to re-examine”). In fact, each of these topics has been thoroughly covered in multiple depositions. Notably, the payables that Bitfinex owed to Tether in connection with USDT
1 See, e.g., Payables (Dkt. No. 468-7, Devasini Tr. at 73-82; Ex. 1, Ardoino Bitfinex 30(b)(6) Tr. at 37-66; Dkt. No. 468-1, Potter Tr. at 241-42; Dkt. No. 468-6, Hoegner Bitfinex 30(b)(6) Tr. at 94-102), Assets accepted by Tether for USDT (Ex. 2, Ardoino Tether 30(b)(6) Tr. at 45-55, 165-75; Ex. 1, Ardoino Bitfinex 30(b)(6) Tr. at 18, 37-41), Public representations (Ex. 3, Hoegner Tether 30(b)(6) Tr. at 11-36, 67-128; Dkt. No. 468-1, Potter Tr. at 92-96, 103-57, 182-203, 215-40; Dkt. No. 468-5, Hoegner Tr. at 286-93), USDT reserve investments (Ex. 3, Hoegner Tether 30(b)(6) Tr. at 37-66), Loans and credit lines (Dkt. No. 468-7, Devasini Tr. at 113-32; Ex. 2, Ardoino Tether 30(b)(6) Tr. at 162-76, 194-97; Ex. 1, Ardoino Bitfinex 30(b)(6) Tr. at 115-22, 252-54), Crypto Capital (Dkt. No. 468-7, Devasini Tr. at 203-87; Ex. 3, Hoegner Tether 30(b)(6) Tr. at 109, 155-66; Dkt. No. 468-5, Hoegner Tr. at 182-204).
www.debevoise.com
issuances was the topic of the Court’
Fried, even though the Court observed in February that “the ” the agreed topics and, in several instances, directly contrary to the Court’s and Bitfinex’s loans of USDT despite the Court’s express
Plaintiffs cannot identify any information regarding “Bitfinex’s finances solvency and ability to pay amounts owed to Tether’s reserves,” that they have not already Plaintiffs’ ow Devasini’s testimony on that topic confirmed that Bitfinex’s balances, net of customer assets, were always sufficient to x’s “total assets and liabilities,” those figures are obviously not something Mr. Devasini Contrary to Plaintiffs’ assertions, the B/T Defendants have Plaintiffs’ implication that numerous witnesses pointed to Mr. Devasini as having “unique knowledge” 62 (“I might start with Giancarlo Devasini,” but “I’m not sure that’s the ultimate person that would be able to answer.”)), Assets accepted by Tether for USDT (Dkt. No. 468 47 (“I would think Potentially Phil Potter.”)), USDT reserve investments (Dkt. No. 468 271 (testifying “I might speak to Sylvano DeStefano, the former CIO of Tether,” and upon further questioning “I’d probably make JL my first stop” and “Possibly Mr. Devasini, but Sylvano would be my first stop.”)), Credit 15 (“I would ask . Potter.”)). Plaintiffs’ suggestion that this information was in Mr. Devasini’s notebook is
Plaintiffs’
Plaintiffs’ claims
Plaintiffs’ Anonymous Trader’s counsel did n the Anonymous Trader for more than four hours, in breach of two Court orders and the parties’ ’ “maneuver[] to lim Plaintiffs’ time” they “anticipated going longer” and “streamlined” their questioning “as a given the time difference.” (Ex.
(“ and the Swiss city of Lugano announced today that the second annual Plan ₿ forum has ”). The Court is in receipt of Plaintiffs' request for a pre-motion conference (Dkt. #468), as well as the B/T Defendants' above response in opposition (Dkt. #473). For the reasons that follow, Plaintiffs' request is DENIED. "[L]ike most discovery disputes, the availability of a second deposition is left to the discretion of the trial court." Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 239 (S.D.N.Y. 2002) (citation omitted); see also Fed. R. Civ. P. 30(a)(2)(ii) (requiring "leave of the court" to take a deposition where "the deponent has already been deposed in the case"). Plaintiffs, as the movants, “[are] expected to show good cause to justify such an order.” Pierre v. City of New York, No. 20 Civ. 5116 (ALC) (VF), 2022 WL 2384150, at *1 (S.D.N.Y. July 1, 2022) (quotation and citation omitted). “Whether good cause exists to extend a deposition beyond the presumptive time limit of seven hours is a fact- specific determination.” Id. (citation omitted). To that end, the Court finds that the facts demonstrate that Plaintiffs have not established good cause to merit such an extension. First, and as the B/T Defendants note, Plaintiffs waited almost a week from the October 5, 2023 deposition date before filing the current request, despite Plaintiffs' counsel having specifically gone through the process of meeting and conferring with counsel for the B/T Defendants regarding the parties' positions on such a request at the close of the Devasini deposition. (See Dkt. #468-7 at 326-329). This delay is inexcusable, especially in light of the imminent close of fact discovery and the Court's repeated admonitions that the parties are expected to act promptly to raise such discovery disputes. Cf. Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (“[A] finding of ‘good cause’ depends on the diligence of the moving party.”). (See, e.g., Dkt. #446 ("The Court reminds the parties of its concerns regarding the timelines within which discovery disputes have been handled by the parties.")). Moreover, Plaintiffs provide the Court with no specific no basis to discredit the B/T Defendants' representations that Devasini has proffered sufficiently detailed testimony in response to Plaintiffs' questioning, nor do Plaintiffs argue that Devasini otherwise prevented the deposition from being conducted in an appropriate manner. (See Dkt. #473 at 1-2). To the extent that Plaintiffs suggest that prior witness testimony establishes that Devasini possesses unique knowledge, it was Plaintiffs’ responsibility to structure their allotted deposition time to focus on these topics, and not other topics that this Court has previously noted to be of marginal relevance. Nor is the parties' apparent disagreement regarding the deposition of the Anonymous Trader relevant to the Court's consideration of the Devasini deposition and Plaintiffs' management of their allotted time. Finally, to the extent that Plaintiffs had notice in August that Devasini would not be available for depositions in late October (Dkt. #473 at 3), the Court Plaintiffs' request to reopen Devasini's deposition is DENIED. Court expects the parties to be judicious with the remaining time before October 23, 2023 close of fact discovery, and reminds the parties of the discovery conference set for October 31, 2023, at 3:00 p.m. in 618 of the Thurgood Marshall United States Courthouse, 40 Foley New York, New York. Clerk of Court is directed to maintain docket entries 468 and 473 under viewable to the Court and the parties only. The Clerk of Court is directed to terminate the pending motions at docket numbers 467, 469, and 472.
October 17, 2023 SO ORDERED. New York, New York
HON. KATHERINE POLK FATLLA UNITED STATES DISTRICT JUDGE