Fundacion Segarra-Boerman e Hijos, Inc. et al v. Martinez-Alvarez et al

REPLY to Response to Motion for Leave to Depose Plaintiff Mildred Segarra-Boerman Prior to a Rule 26

D.P.R.January 9, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO FUNDACIÓN SEGARRA-BOERMAN e HIJOS, INC., and MILDRED A. SEGARRA- BOERMAN, Plaintiffs, vs. ALFREDO MARTÍNEZ-ÁLVAREZ; FELIPE SEGARRA INVESTMENT CORP.; TITÍN FOUNDATION, INC.; JOSÉ RAMON QUIÑONES-COLL; MARTÍNEZ-ÁLVAREZ, MENÉNDEZ-CORTADA & LEFRANC ROMERO, PSC; ALFREDO MARTÍNEZ- ALVAREZ, JR.; SOFÍA MARTÍNEZ- ÁLVAREZ; MARTINAL REAL ESTATE CORP.; and MARTINAL MANAGEMENT CORP. Defendants. CIVIL NO. 3:16-cv-02914-DRD ACTION FOR VIOLATIONS OF THE ORGANIZED CRIME CONTROL ACT OF 1970; (RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT (RICO), 18 U.S.C. §§ 1961-1968); FOR BREACH OF AN ORAL AGREEMENT TO SETTLE THE DISPUTE; SECTION 43(a) OF THE LANHAM ACT, 15 U.S.C. § 1125(a) FOR UNFAIR COMPETITION; FOR BREACH OF FIDUCIARY DUTIES; FOR DECEIT AND BREACH OF CONTRACT [JURY TRIAL DEMANDED] PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO DEPOSE PLAINTIFF MILDRED SEGARRA-BOERMAN PRIOR TO A RULE 26(F) CONFERENCE Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 1 of 13 1 Plaintiffs, Fundación Segarra-Boerman e Hijos, Inc. (“FSB”) and Mildred A. Segarra- Boerman (“Doña Mildred”) (collectively, “Plaintiffs”), respectfully file this Reply in support of their Motion for Leave to Depose Plaintiff Mildred Segarra-Boerman (“Doña Mildred”) prior to a Rule 26(f) Conference (D.E. 114) (“Motion”). Properly apprehending the Court’s stated inclination to allow the deposition, Defendants’ Opposition (D.E. 130) (“Opposition”) largely abandons their long-held strident opposition to the taking of Doña Mildred’s deposition. Instead, Defendants now seek to impose a complicated, overly wrought deposition process on a frail 94-year-old witness, in which they would be permitted to take a full-length “discovery” deposition prior to Plaintiffs taking what Defendants characterize as a “de bene esse” deposition. Defendants’ proposal is as unprecedented, as it is unnecessary. Plaintiffs proposed, as is the case with any Fed. R. Civ. P. 30(a)(2)(A)(iii) deposition, that they would examine Doña Mildred. Defendants could then cross-examine her within the seven hours per witness limitation imposed by the Federal Rules of Civil Procedure and this Court’s Local Rules.1 Since Defendants possess and, indeed, largely authored the salient documents, and were Doña Mildred’s trusted advisors for decades, including at the time of disputed events, there is no genuine risk of surprise, much less the “extreme prejudice” which Defendants claim. In fact, to the contrary, given their decades-long representation of Doña Mildred, Defendants possess an informational advantage. Regardless, Plaintiffs offered a series of practical accommodations to offset any other perceived disadvantage of having Doña Mildred’s deposition occur at this juncture.2 Plaintiff have, 1 Defendants’ assertion that Plaintiffs’ proposal does not carve out time for cross-examination (see Opp. at 13) is belied by Plaintiffs’ counsel’s representations to Defendants’ counsel that Defendants will be afforded an opportunity to cross- examine Doña Mildred, as well as a possible second deposition in the ordinary course of discovery. (See Pls.’ 12/18/18 Letter) (D.E. 130-6 at 2); (Mot. at 13)). 2 Any alleged disadvantage is the byproduct of Defendants’ unwillingness to exchange initial disclosures, participate in a Rule 26 conference, agree to document production or otherwise permit discovery for the last two years. Defendants cannot reasonably complain of being forced “to cross-examine Doña Mildred ‘blind,’” when they have willfully closed their eyes for two plus years. Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 2 of 13 2 for example, already previewed the anticipated deposition topics. Plaintiffs further agreed to a reciprocal exchange of the envisioned exhibits in advance of the deposition. Defendants have rejected this straightforward plan and instead propose a procedure in which they can examine the 94-year-old Doña Mildred for 10.5 hours and Plaintiffs only for 3.5 hours. Defendants also insist they must go first - even though Plaintiffs sought the right to conduct the examination (and Defendants have consistently fought this deposition). Defendants have further demanded a plethora of additional accommodations, in addition to those already volunteered by Plaintiffs, to offset their exaggerated protests of “inevitable unfairness.” In an attempt to justify their decisively one-sided and overly complicated proposal, Defendants rely upon out-of-context and inapposite federal and state case law and procedures, drawn from plainly distinguishable mass tort “bellwether” litigations, and misleadingly characterize Plaintiffs’ desired deposition of Doña Mildred as a “de bene esse” deposition. While Defendants assert that this is the “fairest” mechanism, they ignore the fact that there is no precedent, none, for granting their unwarranted procedural and tactical advantage. Further, they ignore the physical and mental stress that their two-deposition proposal imposes upon a 94-year-old witness. Succinctly stated, Defendants idea of fairness is that they should be able to not only proceed first in taking a deposition that they have steadfastly opposed, but also receive more than three times the amount of time to question a frail, elderly witness. Defendants’ proposal should be viewed for what it is: strategic gamesmanship. They are seeking a tactical advantage by creating a procedure in which they receive as many opportunities as they can conjure to unnerve an elderly witness, who was the victim of their decades-long fraud. Defendants should not be permitted to victimize Doña Mildred once more. Plaintiffs’ simple request should be granted: allow the deposition of a 94 year-old named plaintiff. Two and half years have passed since Doña Mildred first filed her complaint and she is now, in the estimation of a physician, medically frail. Over a month has passed since the need for Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 3 of 13 3 this deposition was argued in open court. Defendants’ demanding, overly complicated, lengthy process will needlessly tax Doña Mildred and provide them with an unprecedented procedural advantage not supported by common sense or case law. It should be rejected. The Court should allow for Plaintiffs to proceed with Doña Mildred’s deposition, without further delay. I. Defendants’ Proposal is Unwarranted and Unfair to Plaintiffs. A. Defendants’ Proposal is Unsupported by the Case Law. Defendants’ proposal that a “discovery” deposition should precede Plaintiffs’ deposition rests on Defendants’ unilateral mischaracterization of Plaintiffs’ deposition as a “de bene esse” deposition - e.g., a deposition taken for the sole purpose of preserving trial testimony. Plaintiffs hope is that Doña Mildred lives long enough to take the stand to tell the jury about how the Defendants perpetrated their decades-long fraud. Appreciating however that any day may be the last day for a 90-year-old plus witness, Plaintiffs have sought to take Doña Mildred almost immediately after she filed her complaint in late 2016. Unusual turns (and Defendants’ unwavering resistance) have prevented discovery from commencing over the past two plus years. To avoid prejudice, Plaintiffs seek to take the deposition of Doña Mildred in accordance with Fed. R. Civ. P. 30(a)(2)(A)(iii).3 Had this case unfolded in the ordinary course, this deposition would have occurred long ago, without any special accommodations. Without question, because of her advanced age and frail condition, Doña Mildred may pass away in advance of the trial and there is an undeniable urgency to take her deposition. However, her 3 Contrary to Defendants’ assertions, there is no rule against a party deposing its own witnesses, be it to preserve testimony or for any other purpose allowable under Rule 32. See generally Wright & Miller, 8A Fed. Prac. & Proc. Civ. § 2102 (3d ed.) (“A party may even take his or her own deposition.”) (citing Richmond v. Brooks, 227 F.2d 490 (2d Cir. 1955) (out- of-state plaintiff entitled to offer his own deposition due to unavailability at trial); Van Sciver v. Rothensies, 122 F. 2d 697 (3d Cir. 1941) (same)). Similarly, whether Plaintiffs initiated the deposition, as opposed to Defendants, is of no consequence to the admissibility of the testimony. See Tatman v. Collins, 938 F.2d 509, 511 (4th Cir. 1991) (“When, as here, the witness’ deposition was duly noticed and all parties had the opportunity to attend (and did attend), it may be introduced at trial, subject to the rules of evidence if the witness is unavailable as described in Rule 32(a)(3). It is irrelevant to the issue that one party or the other initiated the deposition, that it was initiated only for discovery purposes, or that it was taken before other discovery was completed.”). Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 4 of 13 4 deposition remains just that: an ordinary deposition. Indeed, in that tomorrow is not promised to anyone, it is possible - albeit less likely - that any witness may not survive to trial. Taken to its logical extension, Defendants’ proposal is that there should be two depositions of each witness as the default rule: one for “discovery” and one for “trial.” This runs contrary to the Rules of Civil Procedure, which unmistakably contemplate that each witness be deposed once, absent good cause.4 In an attempt to justify their extraordinary “two deposition” proposition, Defendants rely upon a handful of out-of-circuit, inapposite, readily distinguishable, and largely unreported federal district court cases; or worse, state court cases decided on state court procedures and local rules. The extent to which Defendants had to scrounge for and piece together case law from an assortment of courts across the country belies their claim that their proposal is “not a novel remedy.” (See Opp. at 8). Not only is their proposal novel in this type of case (i.e., not a mass tort case, or one involving complex medical or scientific principles), it is unprecedented. Notably, the Opposition fails to cite a single case of any precedential or persuasive authority from this District, the First Circuit or any other sister Circuit, in support of its lopsided proposal. Not one. The dearth of any actual precedent is unsurprising given that the Federal Rules of Civil Procedure reject the artificial labels that Defendants ascribe to their proposed depositions. Indeed, the Fourth, Fifth and Eleven Circuit Court of Appeals have all rejected the very premise upon which Defendants’ proposal is based: that there is a difference between “discovery” and “trial/de bene esse” depositions. See, e.g., Tatman v. Collins, 938 F.2d 509, 510 (4th Cir. 1991) (“The Federal Rules of Civil Procedure make no distinction for use of a deposition at trial between one taken for discovery purposes and one taken for use at trial (de bene esse). Moreover, we are 4 Plaintiffs’ Motion notes Defendants’ entitlement to seek a second deposition of Doña Mildred should it prove necessary. The fact that this second deposition would occur after Plaintiffs’ deposition vitiates Defendants’ professed concern of not knowing the subject matter of Doña Mildred. Rather than being forced to examine her “blind,” Defendants would have the benefit of her initial testimony. Contrary to Defendants’ suggestion, any risk of “surprise” is negated by having Plaintiffs’ deposition proceed first. Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 5 of 13 5 unaware of any authority which makes that distinction.”); Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1362, n.8 (11th Cir. 2002) (same); Savoie v. Lafourche Boat Rentals, Inc., 627 F.2d 722. 724 (5th Cir. 1980) (same). Other Federal courts have similarly held that “a deposition is a deposition is a deposition.” See, e.g., Smith v. Royal Caribbean Cruises, Ltd., 302 F.R.D. 688, 690 (S.D. Fla. 2014) (“But, as the discovery rules evolved in modern litigation practice, it became increasingly clear over time that any distinction between depositions ‘for discovery’ and depositions de bene esse ‘for trial’ was no longer meaningful. . . The drafters [of the 1970 amendments to the Federal Rules of Civil Procedure] thus acknowledged that de bene esse procedures were superfluous and should be considered repealed.”);5 Global ePoint, Inc. v. GTECH Corp., CA 11-197 S, 2015 WL 113979, at *2 (D.R.I. Jan. 8, 2015) (“The Federal Rules of Civil Procedure make no distinction for use of a deposition at trial between one taken for discovery purposes and one taken for use at trial (de bene esse). Thus, Blazer’s first deposition may be used in the same way that a second deposition de bene esse deposition would be used. Blazer’s fact deposition serves the function of uncovering information and preserving testimony. Therefore, a second deposition would be duplicative.”) (citations omitted) (emphasis added); In re Tutu Water Wells Contamination CERCLA Litigation, 189 F.R.D. 153, 157 (D.V.I. 1999) (“Thus, this Court is unable to recognize a distinction between a de bene esse deposition and one used for discovery.”); Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556, 559 (S.D. Cal. 1999) (same); Henkel v. XIM Prods., Inc., 133 F.R.D. 556, 557-58 (D. Minn. 1991) (same); United States v. IBM Corp., 90 F.R.D. 377, 381, n.7 (S.D.N.Y. 1981) (explaining that any distinction between a discovery deposition and a de bene esse deposition was deliberately eliminated from the Federal Rules of Civil Procedure). 5 The Smith decision observes that: “Once an action has been filed, Rules 30 through 32 recognize a ‘deposition’ as a recorded statement of a party or witness that can be used by a party for any purpose, whether it be pure discovery, source of impeachment, or trial testimony for a case in chief. . . a ‘deposition’ taken once an action has commenced has but one meaning and definition: a deposition as a discovery device under Rule 30.” 302 F.R.D. at 690. Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 6 of 13 6 Defendants, nevertheless, invite this Court to create new law using antiquated legal precepts, which - as evidenced by their own case law - are sparingly utilized in the most limited of circumstances. With few exceptions, Defendants’ cases center around requests to preserve the testimony of non-parties or expert witnesses after the discovery cutoff period in mass tort litigation in order to identify or try bellwether cases. (See Opp. at 8-9). Moreover, in most of these cases, there were specific local rules that afforded special treatment to “de bene esse” depositions in mass tort cases. (Id. at Ex. G). See also NC Swine Farm Nuisance Litig., 2016 WL 3742135, at *4 (E.D.N.C. July 7, 2016) (one of 26 mass tort cases governed by a special scheduling order, and subject to a local civil rule expressly allowing a “de bene esse” deposition after the close of discovery, allowing the plaintiff to preserve his own expert’s testimony due to deteriorating health); Holmes v. Merck & Co., 2006 WL 1744300, at *3 (D. Nev. June 22, 2006) (same). Because the non-party witnesses in these cases, many of whom were previously unknown to the other party, were being deposed after the close of discovery and without advance notice of the subject matter of their anticipated trial testimony, those courts afforded the non-moving party the opportunity to depose the witness first to protect the right of cross examination. Defendants’ other cases involve the deposition of expert witnesses on complex issues, which are subject to a different set of rules based on Rule 26(b)(4)’s explicit right to depose any expert whose opinion may be presented at trial. See Schmude v. Tricam Indus., Inc., No. 07-C-457, 2008 WL 73319, at *1-2 (E.D. Wis. Jan. 7, 2008) (citing Fed. R. Civ. P. 26(b)(4)(A) and related comment to the rule, observing that the effective cross-examination of an expert witness requires advanced preparation due to the “intricate and difficult issues as to which expert testimony is likely to be determinative.”). By contrast, there is no presumptive right built into the Rules for Defendants to take a second deposition of Doña Mildred, who is not an expert, who is not a stranger to Defendants, and whose lay testimony will not require extensive advanced preparation for cross-examination. Not a single case cited in the Opposition involves an even remotely comparable fact pattern: Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 7 of 13 7 the taking of a deposition of a 94-year-old named plaintiff before a Rule 26(f) conference pursuant to Rule 30(a)(2)(A)(iii) - twenty-five months into the litigation. Indeed, in only two of Defendants’ cited cases, both of which are unreported, did the court deny a party’s request to take his own deposition for the purpose of preserving testimony. (Opp. at 6). A cursory review reveals the inapposite nature of these cases. Ward v. Shaefer is a medical malpractice case that was transferred to a state medical malpractice tribunal. No. 16-12543-FDS, 2017 WL 5505405, at *7 (D. Mass. Nov. 16, 2017). There, the court noted that it was normally “premature” to allow discovery prior to an offer of proof to a state medical malpractice tribunal, and questioned whether the deposition, which involved complex scientific and medical causation issues, was also “premature” and possibly prejudicial to the physician-defendants before the completion of discovery. Id. The court was also unpersuaded by the plaintiff’s unsubstantiated claim of serious illness. Id. Even so, the court’s denial was without prejudice and “subject to renewal upon changed circumstances, such as (for example) a further decline in plaintiff’s health or the completion of sufficient discovery to permit effective cross- examination.” Id. The second case, Weiss v. First Unum Life Ins., similarly bears no resemblance to this case. There, the court denied the plaintiff’s request to take his deposition at the outset of the claim, finding that the plaintiff failed to demonstrate any real “danger that his testimony will be lost,” but allowed for the possibility of a renewed motion premised upon “specific evidence of a bona fide danger that Plaintiff’s testimony will be lost.” See No. 02-4249 (GEB), 2010 WL 1027610, at * 3 (D.N.J. Mar. 16, 2010).6 The alleged prejudices which Defendants decry simply do not exist in this case. Doña Mildred 6 In another case cited by Defendants, 19th St. Baptist Church v. St. Peters Episcopal Church, the court granted plaintiffs’ request to take the deposition of their own witnesses. See 190 F.R.D. 345, 349 (E.D. Pa. 2000). In granting the depositions, the 19th St. Baptist Church court held - contrary to Defendants’ repeated representations to this Court - that age alone justified taking the depositions of the four named plaintiffs (between the ages of 86 and 91) because if the “testimony is lost due to death or infirmity, plaintiffs effectively would be put out of court.” Id. Because the events dated back to 1945, and because the defendants had no other source for discovering the plaintiffs’ testimony about those events, the court did allow for a discovery deposition. Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 8 of 13 8 is not a “surprise witness.” Instead, she is a former client of Defendants, whom they have known, advised and represented for decades. As a consequence of this intimate relationship, Defendants: (a) were personal witnesses to the events, and/or (b) either authored or controlled the relevant documents, including those relating to Doña Mildred’s personal and business affairs. The percipient events and documents are memorialized, in detail, in Plaintiffs’ amended complaint and accompanying RICO case statement. Further, if this were not sufficient, Plaintiffs have already disclosed the intended topics of the deposition, agreed to provide advance copies of the intended deposition exhibits and, contrary to the false impression left by the Opposition, agreed to the vast majority of the other “prophylactic measures” demanded by Defendants. Unlike in their cites cases, no reasoned claim can be made that Defendants will be relegated to an “on-the-spot” or “blind” cross-examination.” Contra Hart v. Old Evangeline Downs, LLC, No. 14-cv-00644-BAJ-EWD, 2016 WL 9384350, at *2 (M.D. La. Mar. 18, 2016); Gumbs-Heyliger v. CMW & Assoc. Corp., No. 2012-0078, 2014 WL 5472567, at *3 (D.V.I. Oct. 29, 2014). Moreover, due to Doña Mildred’s advanced age, she is likely unable to sit for an all-day deposition. Consequently, under Plaintiffs’ proposed two to three-day deposition schedule, Defendants would have the benefit of first hearing Doña Mildred’s testimony and then having time to prepare before cross-examining her. Despite their search for cases from “across the nation,” Defendants have not, and cannot, find a single case in which their proposed protocol was implemented under facts similar to the ones at hand. B. Defendants’ Proposal is Unreasonable and Deeply Prejudicial to Plaintiffs. Defendants’ overly complicated proposal runs counter to this Courts’ default rule of a 7-hour deposition limit, the Federal Rules of Civil Procedure, common sense, and basic principles of equity. Defendants propose that they be permitted to first take a 7-hour “discovery deposition” of a 94-year old witness, in which Plaintiffs would not receive so much as a minute to conduct cross-examination. Plaintiffs must then wait 30 days to take a “de bene esse” deposition, which would be limited to 3.5 Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 9 of 13 9 hours for Doña Mildred’s direct examination, followed by 3.5 hours of additional hostile questioning by Defendants. Defendants’ desire to reserve the first 7 hours for themselves and then impose a month delay creates the risk that Doña Mildred could pass away without any questioning from Plaintiffs. Defendants’ own cases do not support their request. In fact, in the few instances, in which “discovery” depositions were permitted to proceed in advance of a “de bene esse” deposition, the discovery deposition was limited in time and scope. See, e.g., Estenfelder v. Gates Corp., 199 F.R.D. 351, 357 (D. Colo. 2001) (“Prior to the commencement of the preservation deposition of each of the four witnesses, counsel for plaintiff shall be allowed one hour during which he may ask questions of the witness in the nature of a discovery deposition.”) (emphasis added)7; In re Managed R.S. 2477 Rd. Cases Litig., No. 1:12-CV-105, 2013 WL 12144076, at *2 (D. Utah Dec. 17, 2013) (allowing an intervenor-party up to one-eighth (1/8) of the time spent on direct examination by the party that noticed the “preservation” deposition for its cross-examination); Allen v. Int’l Truck & Engine Corp., 1:02-CV-00902-RLY, 2012 WL 2131845, at *1 (S.D. Ind. June 12, 2012) (noting the practice allowing an expert witness who is unavailable for trial “to be deposed for purposes of discovery a few hours before he is offered at a deposition to preserve his trial testimony.”) (emphasis added). In one instance involving a Rule 27 deposition, the court solely permitted the non-moving party an opportunity to conduct an “informal” interview of the deponent before the pre-suit deposition, rejecting their request for a “discovery” deposition. See In re Kubler, No. MC 11-0048 JB, 2012 WL 394680, at *10 (D.N.M. Jan. 25, 2012). Even if this Court were to permit a discovery deposition, there is no support for Defendants’ 7 Many cases, such as Estenfelder, cited in the Opposition, have been roundly criticized for requiring overly complicated procedures when permitting “de bene esse” depositions. See, e.g., Gen. Steel Domestic Sales, LLC. v. Chumley, No. 13- CV-00769-MSK-KMT, 2016 WL 2983741, at *3 (D. Colo. May 24, 2016) (disagreeing with Estenfelder’s assumptions and conclusions, and noting that it was decided before the recent amendment to Fed. R. Civ. P. 1, which “imposes upon counsel the obligation to avoid ‘over-use, misuse, and abuse of procedural tools that increase cost and result in delay.’”) (quoting Advisory Committee notes to 2015 Amendment). Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 10 of 13 10 request for 10.5 hours of deposition time. And, on this point, it bears noting that Defendants have failed to explain why 10.5 hours of questioning is needed to address 3.5 hours of direct examination. See Estenfelder, 199 F.R.D. at 357. There is only one credible explanation for Defendants’ broad demand: witness abuse. The potential strain that two depositions and extra time will impose upon a 94 year old Doña Mildred cannot be lost on Defendants, and should not be overlooked by this Court. See In re Tutu Water Wells Contamination, 189 F.R.D. at 362 (denying a request to re-depose a 81- year old witness because “no deposition ... is worth risking a man’s life, and in this case, where depositions have already occurred, this Court could not in good conscience subject [the witness] to a very real risk of danger.”). Plaintiffs’ proposal adequately safeguards Defendants’ cross-examination rights. Plaintiffs previewed the direct examination topics, agreed to provide advance copies of the anticipated deposition exhibits, and agreed to a supplemental deposition of Doña Mildred, should it prove necessary. (See Mot. at 13 & Ex. E). Nothing more is required. See, e.g., In re Chiquita Brands International, Inc., No. 08-01916-MD-MARRA, 2015 WL 12601043, at *7 (S.D. Fla. Apr. 7, 2015) (“Again, the order allowing preservation testimony of Mr. Freidheim, now a party-witness, shall be without prejudice for either party to request a supplemental deposition of the witness in the ordinary course of Rule 26 discovery, upon motion filed and good cause shown.”).8 III. Conclusion Plaintiffs stand by their Motion and the reasonable measures offered in it to mitigate any perceived prejudice to Defendants (there is none) arising from Plaintiffs’ taking of one deposition prior to a Rule 26(f) conference. Accordingly, the Motion should be granted in full. 8 Furthermore, Defendants’ complaint about their hypothetical inability to introduce Doña Mildred’s prior inconsistent testimony under Fed. R. Evid. 613 (see Opp. at 12-13), if she were to become unavailable, is groundless, as Rule 613(b) expressly states that its limitations do not apply to admissions against interest of a party opponent. See Fed. R. Evid. 613(b). Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 11 of 13 11 Dated: January 9, 2019 STROOCK & STROOCK & LAVAN LLP 200 S. Biscayne Boulevard, Suite 3100 Miami, Florida 33131 Telephone: (305) 978-9300 Facsimile: (305) 978-9302 CASELLAS ALCOVER & BURGOS, P.S.C. P.O. Box 364924 San Juan, Puerto Rico 00936-4924 Telephone: (787) 756-1400 Facsimile: (787) 756-1401 Attorneys for Plaintiffs Attorneys for Plaintiffs By: s/ Lewis F. Murphy By: s/ Ricardo F. Casellas Pro Hac Vice U.S.D.C. No. 203114 By: s/ James G. Sammataro By: s/ Diana Pérez Seda Pro Hac Vice U.S.D.C. No. 232014 By: s/ Hans H. Hertell By: s/ Carla S. Loubriel Carrión U.S.D.C. No. 228307 U.S.D.C. No. 227509 Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 12 of 13 12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 9, 2019, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that a notice of the foregoing document is being served this day on all counsel of record identified in the manner specified, via transmission of Notices of Electronic Filing generated by CM/ECF this 9th day of January, 2019. s/ Hans H. Hertell Hans H. Hertell Rafael Escalera-Rodriguez Reichard & Escalera PO Box 364148 San Juan, PR 00936-4148 Attorney for Defendants Email: escalera@reichardescalera.com Daniel A. Salinas-Serrano Quinn Emanuel Urquhart & Sullivan, LLP 777 6th Street NW 11th Floor Washington, DC 20001 Attorney for Defendants Email: danielsalinas@quinnemanuel.com Case 3:16-cv-02914-DRD Document 139 Filed 01/09/19 Page 13 of 13