T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co.

174 F.R.D. 38, 1997 U.S. Dist. LEXIS 7049, 1997 WL 269501
District Court, S.D. New York·Decided May 21, 1997·No. No. 95 Civ.l925(JSR)(THK)·Published·Cited by 48 cases

Opinion

MEMORANDUM OPINION AND ORDER

KATZ, United States Magistrate Judge.

In this action, plaintiff T. Rowe Price Small-Cap Value Fund, Inc. (“T. Rowe Price”), seeks damages and rescission under the Securities Act of 1933 and state law, based upon allegedly misleading statements in, or omissions from, a Registration Statement filed with the Securities and Exchange [41] Commission on October 6, 1993, and a related Prospectus, dated December 14, 1993. The Registration Statement concerned a public offering of rights by Guardian Ban-corp, the bank holding company for Guardian Bank (“the Bank” or “Guardian”), á Los An-geles-based bank that was seized by the California Department of Banking in 1995. Plaintiff, as a “standby purchaser” in the offering, purchased approximately $1 million worth of Guardian securities. Defendant Oppenheimer & Co., Inc. (“Oppenheimer”), acted as the dealer-manager with respect to the offering.

Discovery in this action was completed in July 1996 and the Joint Pretrial Order is to be submitted by July 7, 1997. The instant dispute involves Oppenheimer’s responses to plaintiffs Requests for Admission, which were served on Oppenheimer in June 1996, as well as Oppenheimer’s responses to certain interrogatories. The parties have submitted letter-briefs to the Court regarding these disputes and oral argument was heard on April 2,1997.

THE REQUESTS FOR ADMISSION

Plaintiffs Requests for Admission, submitted pursuant to Rule 36 of the Federal Rules of Civil Procedure, required approximately 124 separate responses. On June 17, 1996, defendant responded to each request, in some eases noting an objection on grounds such as relevance and then providing a response in the nature of an admission, a denial, or an inability to admit or deny. Defendant amended and supplemented its responses on September 9, 1996. Although defendant’s objections based on relevance were initially addressed in the parties’ submissions, that dispute is moot for two. reasons: (1) despite its relevance objection, defendant did provide a substantive response to each request; and (2) defendant’s objection based on relevance arose out of its concern that its failure to object might be taken as a waiver on a substantive dispute in the litigation — whether events post-dating the offering documents at issue are of any relevance to the question of either liability or damages. At oral argument defense counsel appeared to concede, and, in any event, the Court ruled, that for purposes of discovery, the information as to which admissions were sought was relevant, and that this in no way constituted an admission or ruling on the substantive issue to be resolved by the district judge before whom the case is to be tried.

Although the responses in contention are now substantially more limited than when this dispute arose, they remain too numerous to address individually. However, the objections fall into certain broad categories which are discussed below.

A substantial number of the requests seek admissions relating to activities at Guardian Bank that bear on the alleged misrepresentations in the offerings. Of particular relevance to plaintiff is the manner in which the Bank handled its problem assets. In that regard, many of the requests in issue seek admissions on the action or inaction of Guardian’s Special Assets Department and various Bank officers. Other requests relate to Oppenheimer’s due diligence activities with respect to the offering.

The Bank is not a party to this action, nor is the FDIC, which became the Bank’s receiver and, as such, gained custody of the Bank’s records. Those documents are alleged to be in Chicago and were not the subject of discovery by either party. However, plaintiff took the deposition of a number of former employees of the Bank, who testified to certain events as to which they claimed to have knowledge and about which admissions were sought.

Defendant’s response to requests relating to activities at the Bank was, for the most part, that it made reasonable inquiry in order to ascertain the veracity of the requested admissions, but it was unable to admit or deny the requests because the information necessary to do so was not known or readily available — a response that is clearly contemplated under Rule 36. As one explanation for its inability to admit or deny various requests, Oppenheimer claims that it lacks firsthand knowledge of various matters at the Bank, including issues relating to specific Bank personnel and their responsibilities. It contends that Bank documents that might contain information that would enable it to admit or deny the requests are in the custo[42] dy of the FDIC and, thus, the information is neither known nor “readily obtainable” under Rule 36. Oppenheimer relies upon case law holding that, in responding to Rule 36 requests to admit, a party must review its own records and make inquiry of its own agents, but need not investigate the issue through subpoenas and depositions of third parties, such as the FDIC in this case.

Oppenheimer takes the further position that the former Bank employees who were deposed bore hostility to the Bank, and that it is not required to adopt their version of events because Oppenheimer is not in a position to know what actually occurred at the Bank and the witnesses’ credibility is a matter to be determined by the trier of fact in this action. Finally, Oppenheimer contends that to the extent that certain requests seek admissions as to what various deponents believed was occurring at the Bank, or what they thought about those occurrences, those beliefs can be known only by the deponent and cannot be admitted or denied by Oppenheimer. In sum, Oppenheimer represents that it made a good faith effort to respond to the requests for admissions but, with respect to activities at the Bank, it is not in the position to admit or deny many of the requests because it does not have information about those activities and it is not prepared to accept a particular witness’ testimony or beliefs as established fact. Rather, it is prepared to admit what that testimony was and, although it may ultimately have contrary evidence at the time of trial, if it does not, it believes that it is left for the trier of fact to accept or reject the witness’ testimony based upon the witness’ credibility and the complete record in the case.

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T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co., 174 F.R.D. 38, 1997 U.S. Dist. LEXIS 7049, 1997 WL 269501 (S.D.N.Y. 1997).

174 F.R.D. 38 (T. Rowe Price Small-Cap Fund, Inc. v. Oppenheimer & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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