Diaz v. Combe Inc.
| Decision Date | 13 December 2019 |
| Docket Number | Index 59242/2018 |
| Parties | PHILIP L. DIAZ, FRANK S. GIOVINCO, JOEL J. ISOM and TERRY A. WEAVER, Plaintiffs, v. COMBE INCORPORATED and COMBE PRODUCTS, INC., Defendants. Motion Seq. Nos. 5, 7 |
| Court | New York Supreme Court |
Unpublished Opinion
Motion Date: Dec. 9, 2019
Squitieri & Fearon, LLP. Attorneys for plaintiffs
Haworth Rossman & Gerstman, LLC. Attorneys for defendants
DECISION AND ORDER
The following papers were read on this motion by defendants (Seq No. 5) for an order pursuant to CPLR 2221 granting leave to reargue this Court's Decision and Order dated August 16 2019[1], and upon reargument, denying that portion of plaintiffs' motion brought by Order to Show Cause dated July 8, 2019 compelling the depositions of Keech Combe Shetty, Robert Lanni and Carrie Barsuhn; and granting such other and further relief as this Court deems just and proper:
The following papers were read on this motion by defendants (Seq. No. 7) for an order pursuant to CPLR 2221 & 3103, granting leave to renew defendants' argument in opposition to plaintiffs' motion to compel the depositions of additional Combe witnesses, which this Court granted on August 16, 2019; and granting a Protective Order striking plaintiffs' deposition notices for Keech Combe Shetty (Co-Chief Executive Officer), Roberto Lanni (Chief Information Officer) and Carrie Barsuhn (Senior Director of Consumer Resources); or alternatively, limiting the noticed depositions in time and scope; and granting such other and further relief as this Court deems just and proper:
Procedural History:
This action was commenced by the filing of a summons and complaint on June 12, 2018. Plaintiffs seek damages for claims sounding in the alleged negligent design, development, manufacturing, testing, packaging, promotion, marketing, distribution, labeling and sales of hair care products and hair dyes marketed as Just for Men®. Defendants filed an answer on July 30, 2018. Counsel for the parties have appeared multiple times for compliance conferences.
Contentions of the Parties:
In the first of two motions, defendants seek leave to reargue this Court's Decision and Order dated August 16, 2019, which granted that portion of plaintiffs' motion which sought to compel the depositions of three Combe employees, ie. Combe's Co-Chief Executive Officer, Keech Combe Shetty; Combe's Chief Information Officer, Robert Lanni; and Combe's Senior Director of Consumer Resources, Carrie Barsuhn. Defendants argue that Dr. Rao's deposition had not been completed at the time the underlying motion was made and therefore plaintiffs could not have properly evaluated the sufficiency of her testimony as a representative of defendants. Additionally, defendants argue that plaintiffs' claims that they needed the testimony of these three witnesses were speculative.
In opposition, plaintiffs argue that they explained in detail in their original motion papers why they seek the testimony of each of these three witnesses. Furthermore, plaintiffs again assert that each of the witnesses' testimony will be material and necessary to plaintiffs' claims and will not be cumulative. Additionally, plaintiffs argue that defendants do not dispute that the three witnesses have relevant information about plaintiffs' claims and submit that defendants merely submit the same arguments submitted in opposition to the original motion which the Court already reviewed and rejected.
In the second motion, defendants seek leave to renew their argument in opposition to plaintiffs motion to compel depositions of additional Combe witnesses, which motion this Court granted on August 16, 2019 and seek a protective order preventing the depositions of Combe witnesses Keech Combe Shetty, Roberto Lanni and Carrie Barsuhn, or in the alternative, limiting the scope of any such depositions that are allowed. Defendants submit that the motion to renew is based on the completion of the deposition of Dr. Pushpa Rao, the witness designated by defendants as the employee most knowledgeable about the matters which are relevant to the claims in this case. Dr. Rao's title is Senior Director of Global Product Safety and Regulatory. Defendants contend that after being deposed for four days by plaintiffs, this witness proved to be a witness knowledgeable about all the topics for which plaintiffs argued they needed the additional witnesses. Defendants now submit that, based upon the deposition transcript of Dr. Rao, plaintiffs can no longer carry their burden to compel defendants to produce additional witnesses under the facts and circumstances. Defendants request that the Court reconsider plaintiffs' motion to compel in light of Dr. Rao's testimony and her detailed knowledge over four days of testimony. Moreover, defendants argue that plaintiffs' demand for cumulative witnesses, some of whom are high-ranking corporate officers, is nothing more than a strategic tactic which is intended to embarrass, pressure and otherwise prejudice defendants. They further contend that the remaining witnesses sought by plaintiffs do not possess any knowledge which is unique or relevant to the issues in this case.
Plaintiffs oppose the motion. They argue that the deposition testimony of Dr. Rao does not obviate the need for further testimony from defendants' witnesses, but actually confirms plaintiffs' need to depose further witnesses. Plaintiffs additionally argue that defendants have not identified new facts which would warrant changing this Court's prior decision. Plaintiffs submit that Dr. Rao's testimony confirms the need for the deposition testimony of Keech Combe Shetty ("Shetty") because she will possess information as to what higher-ups knew about the safety of the products, as she is the co-CEO of the company. Furthermore, plaintiffs contend that Dr. Rao's testimony and defendants' recent document production confirms that there is no one higher than Shetty who would have the final say on the company's strategy. Plaintiffs submit that Shetty attended both company board and project approval committee meetings. Additionally, plaintiffs contend that committee meetings are when the ones responsible for approving any changes to products would determine what funds would be allocated to reformulating products, such as replacing ingredients in the product which might be dangerous. Plaintiffs submit that Shetty would have knowledge as to the company decision making behind continuing to sell, what they describe as a dangerous product, even after the company received reports of injuries. Plaintiffs further submit that Dr. Rao did not attend board meetings and was not present for any discussions among board members and high level executives regarding such things as the company's sales, marketing or financial performance, including that of the Just for Men® line and its social media strategy, which is testimony that is material and necessary to proving plaintiffs' claims.
Pursuant to CPLR 3101(a)(1), there must be full disclosure of all matters "material and necessary" in the prosecution or defense of an action. The phrase "material and necessary" is interpreted liberally to require disclosure, on request, of any facts bearing on the controversy that will assist preparation for trial by sharpening the issues and reducing delay and prolixity (see Matter of Kapon, 23 N.Y.3d 32 [2014] quoting Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968]). "It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Forman v Henkin, 134 A.D.3d 529, 529 [1st Dept 2015], quoting Vyas v Campbell, 4 A.D.3d 417, 418 [2d Dept 2004]; Crazytown Furniture v Brooklyn Union Gas Co., 150 A.D.2d 420, 421 [2d Dept 1989]). However, unlimited disclosure is not mandated and may be denied, limited, conditioned or regulated by the court (see Diaz v City of New York, 117 A.D.3d 777 [2d Dept 2014]). The essential test is "usefulness and reason" (see, Andon v 302-304 MottSt. Assoc, 94 N.Y.2d 740, 746[2000] [internal quotation marks omitted]; see Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968]). The party seeking disclosure has the burden to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims (Foster, 74 A.D.3d at 1140). The court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (Mironer v City of New York, 79 A.D.3d 1106, 1108 [2d Dept 2010]; Auerbach v Klein, 30 A.D.3d 451, 452 [2d Dept 2006]).
A motion for leave to reargue "shall be based upon matters of fact Or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]; see Matter of Carter v Carter, 81 A.D.3d...
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