CFTC v. Midland Rare Coin Exch., Inc.

CFTC v. Midland Rare Coin Exch., Inc.

Opinion

AMENDED OMNIBUS ORDER ¹ /

 [*2]  THIS CAUSE is before the Court on Defendant's Motion For Protective Order (D.E. # 217) and Plaintiff's Incorporated Motion to Compel Deposition Testimony of Mark Modist and for Costs and Expenses (D.E. # 233). These matters were referred to the undersigned United States Magistrate Judge by the Honorable William P. Dimitrouleas, United States District Judge for the Southern District of Florida, and are now ripe for judicial review.

In February of 1999, Plaintiff served Mark Modist ("Modist") counsel with notices to take the corporate deposition of Global Asset Management Inc., ("Global" or "Defendant") under Federal Rule of Civil Procedure ("FRCP") 30(b)(6) on March 12, 1999, and thereafter to depose the President of Global, Modist under FRCP 30(b)(1) on March 16, 1999. On March 2, 1999, Defendants filed a Motion for Protective Order that sought to prohibit Plaintiff, Commodity Futures Trading Commission ("Commission" or "Plaintiff") from deposing Global's corporate representative, Modist in his individual and corporate capacity, arguing that it would violate local rule 26.1.K, S.D. Fla. L.R, six-hour limitation rule for depositions. As evidenced by the transcripts, Global filed [*3]  that Motion because it was concerned that Plaintiff may use the additional six hours to ask questions of Modist that should have been asked in the first six hours. (See Transcript of Hearing pp. 17-18). Magistrate Judge William C. Turnoff denied Global's Motion, noting that if Modist was Global's corporate representative then Plaintiff had a right to depose him six hours in that capacity and six hours in his individual capacity. In other words, the Judge ordered that Plaintiff could depose Modist for a total of twelve hours. Judge Turnoff was unwilling to set an arbitrary time that would limit the deposition to less than the twelve hours. In addition, as it relates to Global's counsel's concerns, the judge ruled that counsel had the option to file a motion if he felt that the additional six hours were being used to ask questions that should have been asked in the first six hours, since this was arguably an abusive use of the deposition.

Global then noticed Modist for deposition as Global's corporate representative for April 27, 1999, and in his individual capacity on April 28, 1999. On April 27 and April 28, 1999, the Commission deposed Global under FRCP 30(b)(6), in his corporate [*4]  capacity, for a total of six hours. Also, on April 28, Plaintiff began to depose Modist under FRCP 30(b)(1), in his individual capacity. During the latter deposition Plaintiff's counsel asked Modist questions regarding knowledge he would have in his corporate capacity as Global's representative. Global's counsel then instructed Modist not to answer any questions relating to his corporate capacity. At this point, Plaintiff's counsel elected not to ask Modist any additional questions stating that it would be better to terminate the deposition and let the Court clarify whether Judge Turnoff's order did indeed prohibit Plaintiff from asking Modist questions related to his corporate capacity during his individual deposition. At the time Plaintiff terminated the deposition, Plaintiff had deposed Modist in his individual capacity for two hours and forty-three minutes (2:43), the deposition lasting from 12:30 -3:13 p.m. (See Cover of Deposition Transcript of Mark Modist's).

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