Sound Around, Inc. v. Friedman

OMING DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK DOC Ho □□ ene X DATE FILED:_ 3/3/2025 SOUND AROUND, INC., Plaintiff, 24-CV-1986 (JHR) (KHP) -against- ORDER REGARDING DEPOSITIONS MOISES FRIEDMAN, SHULIM ELIEZER ILOWITZ, ML IMPORTS, INC., CYRF, INC., LRI GROUP, LLC, EXECUTIVE SERVICES, EXECUTIVE LAUNDRY, LLC, MDF MARKETING, INC., WORLD GROUP IMPORT, LLC, HEFEl PAIDONG OUTDOOR PRODUCTS CO., LTD., Defendants. +--+ +--+ +--+ ----X KATHARINE H. PARKER, United States Magistrate Judge: This Court ordered the parties to set dates certain for the fact depositions of three individuals and 30(b)(6) depositions of three corporate entities associated with Defendants Moises Friedman and Shulim llowitz. (ECF No. 136.)

On February 28, 2025, the parties submitted a joint letter indicating that they did not fully comply with this Court’s order. (ECF No. 137.) They did set the depositions of llowitz and Friedman to take place on April 8 and 9, 2025. Accordingly, those depositions shall occur on those dates and those dates may not be moved absent leave from this Court upon a showing of good cause.

The parties did not agree on dates for the depositions of Levi Rottenberg, owner of Defendants Executive Services and Executive Laundry, LLC, or the 30(b)(6) depositions of ML Imports, Inc., MDF Marketing, Inc. and World Group Import, LLC, all three of which are affiliated with Friedman and llowitz. Defendants argue that because the same people being deposed in their individual capaci�es also would tes�fy on behalf of their affiliated companies, Plain�ffs should take the deposi�ons simultaneously and be limited to 7 hours.

“A deposi�on pursuant to Rule 30(b)(6) is substan�ally different from a witness's deposi�on as an individual. A 30(b)(6) witness tes�fies as a representa�ve of the en�ty, his answers bind the en�ty and he is responsible for providing all the relevant informa�on known or reasonably available to the en�ty.” Sabre v. First Dominion Cap., LLC., No. 01 CIV. 2145 (BSJ), 2002 WL 31556379, at *2 (S.D.N.Y. Nov. 15, 2002) (ci�ng 8A Charles A. Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice & Procedure § 2103 (2d ed. 1994)). Most importantly, the corporate designee speaks on behalf of the corporate en�ty and must be prepared to tes�fy to maters beyond the designee’s personal knowledge so long as the maters are reasonably available to the corpora�on. Id. “[T]he mere fact that the principal of a corpora�on has been deposed is not an automa�c subs�tute for a 30(b)(6) deposi�on.” A.I.A. Holdings, S.A. v. Lehman Bros., No. 97CIV4978LMMHBP, 2002 WL 1041356, at *3 (S.D.N.Y. May 23, 2002).

However, insofar as Rule 1 requires the par�es and the courts to u�lize the discovery rules in a manner that is efficient and designed to reduce costs, par�es o�en agree to conduct fact and 30(b)(6) deposi�ons simultaneously when the corporate designee is the same as a fact witness and the party being deposed agrees that the fact witness’s answer will be binding on the en�ty.

See Fed. R. Civ. P. 1. It is some�mes necessary to extend the �me of such deposi�ons beyond 7 hours and up to 14 hours. Where 30(b)(6) topics are duplica�ve of ques�ons previously asked of an individual witness, courts may limit or disallow the 30(b)(6) deposi�on for reasons of efficiency and economy. See A.I.A. Holdings, 2002 WL 1041356, at *3. This is par�cularly so when the en�ty is a closely-held corpora�on. See DDK Hotels, LLC v. Williams-Sonoma, Inc., 2022 WL 2702378, at *5 (E.D.N.Y. Feb. 11, 2022) (limi�ng certain Rule 30(b)(6) deposi�on topics based on prior individual witness tes�mony).

Here, Defendants Ilowitz and Friedman have not stated that they would s�pulate that the tes�mony of Ilowitz and Friedman would bind their affiliated en��es. Nor have they explained why the deposi�on topics for the corporate en��es are an�cipated to be duplica�ve of the ques�ons that will be posed to Ilowitz and Friedman or why no addi�onal �me should be alloted for 30(b)(6) deposi�on topics. The Execu�ve defendants similarly have not stated that Rotenberg will be prepared to tes�fy jointly in his personal capacity and representa�ve capacity for the Execu�ve defendants or why 7 hours is sufficient �me such that no addi�onal �me should be alloted for a combo-individual and 30(b)(6) deposi�on.

In sum, Defendants have failed to provide sufficient informa�on jus�fying their failure to comply with this Court’s prior order requiring them to provide deposi�on dates between March 24, 2025 and April 18, 2025 for deposi�ons of the corporate en��es and Rotenberg.

Accordingly, Defendants shall designate corporate witnesses to tes�fy on behalf of ML Imports, Inc., MDF Marke�ng, Inc and World Group Import, LLC on April 10 and 11, 2025. Insofar as these are closely-held corpora�ons of Ilowitz and Friedman and there may be significant areas of overlap between the individual and Rule 30(b)(6) deposi�ons, the Court assumes that Ilowitz and Friedman will agree to have their individual deposi�ons also be binding on their affiliated corporate en��es for the sake of efficiency and that the �me necessary to complete the deposi�ons of the three corporate en��es can be completed in a total of no more than 14 hours, not including the 7 hours alloted for each individual deposi�on of Ilowitz and Friedman.

Plain�ff may apply to the Court for addi�onal �me if such addi�onal �me is needed; provided, however, the Court expects Plain�ff’s counsel to u�lize deposi�on �me efficiently and to ensure that ques�ons are targeted to obtain informa�on relevant to the claims and defenses. The Court may deny addi�onal �me if it finds that Plain�ff’s counsel has wasted �me during the deposi�ons.

The Court assumes that Rotenberg will agree that his answers will be binding on the two Execu�ve en��es and that, given Execu�ve’s rela�vely limited involvement in the underlying facts of this case, the combo individual and Rule 30(b)(6) deposi�on can be taken in one day. That deposi�on must occur on March 26, 2025, absent good cause to reschedule it, except that Plain�ff may apply for addi�onal �me to complete the deposi�on upon a showing that addi�onal �me is needed and provided counsel has efficiently u�lized the first seven hours of deposi�on �me.1 Sound Around shall make its corporate representative available for a Rule 30(b)(6) deposition on or before May 6, 2025 to allow Defendants at least once week to prepare for the preliminary injunction hearing on May 13, 2025.

The parties are encouraged to reach agreement on all other matters related to deposition dates and deposition topics through meet and confers.

Insofar as a deposition is now scheduled for April 9, 2025, the Case Management Conference on that same day is hereby adjourned. In lieu of a conference, the parties shall provide a joint status letter by April 11, 2025.

1 The Execu�ve Defendants have suggested they may be retaining new counsel. Such counsel should be retained sufficiently in advance of March 26, 2025 so as not to disrupt the date of the deposi�on.

SO ORDERED.

DATED: New York, New York March 3, 2025 Kethauice Hf fi KATHARINE H. PARKER United States Magistrate Judge