UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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SPIN MASTER LTD.,
Plaintiff,
-against-
BUREAU VERITAS CONSUMER PRODUCTS
SERVICES, INC., and EUROFINS PRODUCT
SAFETY LABS, INC.
Defendants.
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Civil Action No. 08-cv-0923
(RJA) (HKS)
DEFENDANT EUROFINS PRODUCT SAFETY LABS, INC.’S
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF
SPIN MASTER LTD.’S MOTION FOR A PROTECTIVE ORDER
AND SPIN MASTER LTD.’S AND RONALD Y. ROTHSTEIN’S
AMENDED MOTION TO QUASH NON-PARTY SUBPOENA
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
Attorneys for Defendant
Eurofins Product Safety Labs, Inc.
1633 Broadway
New York, New York 10019
(212) 506-1700
Case 1:08-cv-00923-EAW-HKS Document 109 Filed 02/18/11 Page 1 of 29
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1
BACKGROUND ........................................................................................................................... 3
A. SPIN MASTER’S RELEVANT ALLEGATIONS IN THIS ACTION............................ 3
B. SPIN MASTER’S CONTRARY CONTENTIONS TO THE CPSC ................................ 4
C. THE DISCOVERY SOUGHT........................................................................................... 7
ARGUMENT THE DEPOSITION IS RELEVANT AND REASONABLY
CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE
EVIDENCE, AND THERE IS NO APPLICABLE EXCEPTION TO THE
GENERAL RULE THAT WARRANTS A PROTECTIVE ORDER .............................. 8
A. THE DEPOSITION OF MR. ROTHSTEIN IS APPROPRIATE HERE BASED
ON CONTROLLING LAW .............................................................................................. 8
1. Factor 1: EPSL Has A Demonstrable Need To Depose Mr. Rothstein ................. 9
a. The Information Sought Is Relevant.......................................................... 9
b. Mr. Rothstein Is Privy To The Facts He Communicated To The
CPSC And He Is A Necessary Witness ................................................... 10
2. Factor 2: Mr. Rothstein Plays An Integral Role In The CPSC Letters, And
The Deposition Sought Is Not Based On His Role As Counsel In This
Case...................................................................................................................... 13
3. Factor 3: There Is No Privilege Issue .................................................................. 15
a. This Issue Has Been Resolved Conclusively........................................... 15
b. Privilege/Work Product Has Been Waived.............................................. 15
c. Mr. Rothstein’s CPSC Communications Are Not Privileged As A
Substantive Matter ................................................................................... 16
4. Factor 4: Extent Of Discovery So Far Does Not Obviate The Deposition......... 17
B. SPIN MASTER’S ACCUSATION OF IMPROPRIETY IS WHOLLY
UNSUBSTANTIATED ................................................................................................... 20
C. SEVENTH CIRCUIT LAW DOES NOT PRECLUDE THE DEPOSITION ................ 20
CONCLUSION............................................................................................................................ 23
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TABLE OF AUTHORITIES
Page(s)
Cases
Astra Aktiebolag v. Andrx Pharms., Inc.,
208 F.R.D. 92 (S.D.N.Y. 2002) ...............................................................................................21
Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc.,
95 Civ. 8833, 1999 U.S. Dist. LEXIS 8929 (S.D.N.Y. June 14, 1999)...................................18
Creditsights, Inc. v. Ciasullo,
05 Civ. 9345, 2009 WL 3821441 (S.D.N.Y. Nov. 6, 2009) ......................................................9
D’Andrea v. Hulton,
81 F. Supp. 2d 440 (W.D.N.Y. 1999) ......................................................................................15
Disability Advocates, Inc. v. Paterson,
03-CV-3209, 2008 U.S. Dist. LEXIS 103310 (E.D.N.Y. Dec. 22, 2008) ...............................16
Dove v. Atlantic Capital Corp.,
963 F.2d 15 (2d Cir. 1992).........................................................................................................8
Genal Strap, Inc. v. Dar,
CV 2004-1691, 2006 U.S. Dist. LEXIS 11474 (E.D.N.Y. Mar. 3, 2006) ...........................8, 16
Gragg v. International Management Group, Inc.,
5:03-CV-0904, 2007 WL 1074894 (N.D.N.Y. Apr. 5, 2007)..................................................14
Holman v. ICN Pharm., Inc.,
98 Civ. 0674, 1999 U.S. Dist. LEXIS 20017 (S.D.N.Y. Dec. 29, 1999).................................19
In re Friedman,
350 F.3d 65 (2d Cir. 2003)............................................................................................... passim
In re Initial Pub. Offering Sec. Litig.,
249 F.R.D. 457 (S.D.N.Y. 2008) .......................................................................................16, 17
In re Ski Train Fire,
343 F. Supp. 2d 208 (S.D.N.Y. 2004)......................................................................................20
In re Steinhardt Partners, L.P.,
9 F.3d 230 (2d Cir. 1993).........................................................................................................16
Litton Systems, Inc. v. Am. Tel. & Tel. Co.,
700 F.2d 785 (2d Cir. 1983).....................................................................................................19
Mislin v. City of Tonawanda Sch. Dist.,
02-CV-273S, 2004 U.S. Dist. LEXIS 21774 (W.D.N.Y. Oct. 27, 2004) ................................17
Case 1:08-cv-00923-EAW-HKS Document 109 Filed 02/18/11 Page 3 of 29
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Murata Manufacturing Co., Ltd. v. Bel Fuse Inc.,
M8-85, 2007 U.S. Dist. LEXIS 97126 (S.D.N.Y. Apr. 19, 2007).....................................11, 12
New York Independent Contractors Alliance, Inc. v. Highway, Road and Street
Construction Laborers Local Union 1010,
07-CV-1830, 2008 U.S. Dist. LEXIS 95328 (E.D.N.Y. Nov. 24, 2008)...........................13, 14
Qad.inc v. ALN Associates, Inc.,
132 F.R.D. 492 (N.D. Ill. 1990)...............................................................................................22
Sea Tow International, Inc. v. Pontin,
246 F.R.D. 421 (E.D.N.Y. 2007) ................................................................................. 13, 14-15
Shelton v. American Motors Corp.,
805 F.2d 1323 (8th Cir. 1986) ...........................................................................................21, 22
Srail v. Vill. of Lisle,
07 C 2617, 2007 U.S. Dist. LEXIS 92363 (N.D. Ill. Dec. 12, 2007) ......................................22
Tailored Lighting, Inc. v. Osram Sylvania Products, Inc.,
255 F.R.D. 340 (W.D.N.Y. 2009)............................................................................9, 11, 18, 21
Texaco Inc. v. Pennzoil Co.,
784 F.2d 1133 (2d Cir. 1986)...................................................................................................20
United States v. Yonkers Board of Education,
946 F.2d 180 (2d Cir. 1991).......................................................................................................9
Upjohn Co. v. United States,
449 U.S. 383 (1981).................................................................................................................16
Urban Box Office Network, Inc. v. Interfase Managers, L.P.,
01 Civ. 8854, 2004 U.S. Dist. LEXIS 21229 (S.D.N.Y. Oct. 19, 2004) ...........................15, 16
Wilson v. O’Brien,
07 C 3994, 2010 U.S. Dist. LEXIS 33721 (N.D. Ill. Apr. 6, 2010) ........................................22
Statutes
15 U.S.C. § 2064(b) .........................................................................................................................4
Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-1278.........................................................4
Rules
16 CFR 1500.3(2)(c)........................................................................................................................6
16 CFR 1500.3(2)(c)(i) ....................................................................................................................6
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16 CFR 1500.3(b)(5)........................................................................................................................6
FED. R. CIV. P. 26(b)(1)....................................................................................................................8
FED. R. CIV. P. 30(a)(1)....................................................................................................................8
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Defendant Eurofins Product Safety Labs, Inc. (“EPSL”) submits this memorandum of
law in opposition to Plaintiff’s (“Spin Master”) motion for a protective order, as well as Spin
Master’s and Ronald Y. Rothstein’s amended motion to quash non-party subpoena
simultaneously filed in the U.S. District Court for the Northern District of Illinois.1
PRELIMINARY STATEMENT
In a nutshell, this action is centered around Spin Master’s allegation that all its woes
regarding Aqua Dots are to be blamed on Bureau Veritas and EPSL because supposedly Bureau
Veritas/EPSL failed to discern that the provided test sample was toxic. EPSL has a number of
defenses to this case, and among them is that, in fact, based on the very specific (and only)
regulatory acute oral toxicity test EPSL was asked to do, the sample provided simply was not
toxic based on the relevant standard. Thus, the question of toxicity is a hotly disputed issue in
this case — Spin Master argues the sample was toxic, and EPSL argues that it was not.
Against this backdrop, Spin Master finally produced, only after having been compelled
by an order of the court hearing the product liability claims against it, communications it had
with the CPSC concerning Aqua Dots (Spin Master resisted production on the grounds of
privilege, and that objection was overruled). Those documents include two letters from Spin
Master to the CPSC in which Spin Master asserts that Aqua Dots, in fact, is not toxic, and that
the applicable acute oral toxicity test called for under the CFR demonstrates as much.
Essentially, while arguing here that Aqua Dots is toxic and EPSL came to the wrong conclusion,
Spin Master simultaneously was asserting to the United States governmental agency charged
with overseeing the safety of these products that Aqua Dots is not toxic and the acute oral
1 The U.S. District Court for the Northern District of Illinois transferred the motion to
quash to this Court. See Transfer Order, a copy of which is annexed to the Declaration of Dorit
Ungar dated February 18, 2011 (“Ungar Decl.”) as Exhibit A.
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toxicity test shows as much. In other words, Spin Master is taking diametrically opposed factual
positions in this case than it is taking with the government, and it is doing so at the exact same
time (one of the letters to the CPSC was sent during the pendency of this litigation). Needless to
say, these two letters are powerful evidence, and the propriety of a deposition of the author is
hard to question.
As it happens, Mr. Rothstein is the author of these two letters. That Spin Master chose to
have its outside lawyer take the factual positions at issue does not insulate the author from
discovery. Indeed, had Spin Master’s general counsel (or any other employee or agent) written
the letters, there would be no question that Defendants could depose that person. There is no
basis for reaching a different conclusion simply because Spin Master, of its own volition, chose
to have its outside lawyer aver the facts to the CPSC. Moreover, there is little doubt that
Defendants will use these letters at trial, and presumably Spin Master will try to proffer some
argument why the letters should not be taken at face value. Defendants are entitled to learn in
discovery whatever position Spin Master is going to take at trial, and the place to start is with the
author. We appreciate fully that the situation is somewhat awkward because Spin Master chose
to have its outside counsel make the factual representations at issue, but Spin Master cannot
avoid plainly proper discovery simply by having its lawyer be the front man. Mr. Rothstein
surely will be arguing to the Court and/or jury his view of his letters and why he thinks they do
not have the import Defendants attach to them, and it would be fundamentally unfair to deny
Defendants the ability to depose Mr. Rothstein in advance of trial on that very topic.
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BACKGROUND
A. Spin Master’s Relevant Allegations In This Action
In April 2007, Spin Master began distributing Aqua Dots in the United States. (Ungar
Decl. Ex. B (Spin Master Admissions) No. 17) In June 2007, some two months after Spin
Master had begun distributing Aqua Dots to the public, Spin Master first engaged Defendant
Bureau Veritas Consumer Products Services, Inc. (“Bureau Veritas”) to “conduct acute oral
ingestion toxicity testing, using live animals, on a sample of Aqua Dots beads.” (Amended
Complaint, D.E. 7 (“Am. Compl.”) ¶ 12) Bureau Veritas in turn engaged EPSL and was very
specific in what it hired EPSL to do: “Test Requested: 16 CFR 1500.3(c)(2)(i) Oral Toxicity.”
(Ungar Decl. Ex. C (Test Request Form) at SP228500) EPSL performed the test and provided a
written report to Bureau Veritas. (Am. Compl. ¶ 15) Using EPSL’s findings, Bureau Veritas
then prepared its own report with its own conclusions, and submitted those conclusions to Spin
Master on August 10, 2007. (Id.) Bureau Veritas’ report stated that “the Aqua Dots beads were
found to ‘not be[] toxic’ under United States federal toy regulations for acute oral toxicity.” (Id.)
At all relevant times, Spin Master communicated exclusively with Bureau Veritas and had no
contact with EPSL (EPSL was unaware that the test it was asked to do was for Spin Master or
that the product was Aqua Dots, as it was a blind test). (Ungar Decl. Ex. D (Spin Master
Interrogatory answers) Nos. 2, 3) It was not until October 11, 2007, roughly six months after
Spin Master was already selling Aqua Dots into the market, that Spin Master received for the
first time from Bureau Veritas a copy of the EPSL test report. (Id. at Nos. 3, 11) Less than a
month later, on November 7, 2007, Spin Master recalled Aqua Dots. (Am. Compl. ¶¶ 1, 19)
As its basis for this lawsuit, Spin Master alleges that EPSL’s “test was useless as a test
for toxicity of the craft beads” (Am. Compl. ¶ 24), that EPSL “was aware … that a report that the
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beads were safe and not toxic would be relied upon in placing the Aqua Dots beads into the
stream of commerce to be sold for use by children” (Am. Compl. ¶ 41), that “Spin Master relied
on … the [EPSL] report in continuing to distribute and sell Aqua Dots” (Am. Compl. ¶ 18), that
had EPSL “exercised due care relating to the animal testing of Aqua Dots beads, the results of
the testing would have led quickly to the discovery of 1,4 butanediol in the beads and its effect
on humans” (Am. Compl. ¶ 47), and that had EPSL “acted with the appropriate level of
professional care … the November 7, 2007 recall of all Aqua Dots beads would have been
avoided, and the Aqua Dots beads would have been replaced before the upcoming holiday
shopping season.” (Am. Compl. ¶ 33)
Spin Master’s assertions badly mischaracterize the facts and ignore the evidence, but
regardless, the upshot is that Spin Master alleges as the basis for its claims in this case that Aqua
Dots was toxic, and Bureau Veritas/EPSL failed to figure that out.
B. Spin Master’s Contrary Contentions To The CPSC
Several months after the recall, the CPSC began “investigating whether [Spin Master] …
complied with the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-1278 (‘FHSA’) and the
reporting requirements of section 15(b) of the Consumer Product Safety Act (‘CPSA’), 15
U.S.C. § 2064(b),2 concerning the Aqua Dots recalled on November 7, 2007[.]” (Ungar Decl.
2 Section 15(b) of the CPSA required Spin Master to “notify the [CPSC] immediately if it
obtains information which reasonably supports the conclusion that a product distributed in
commerce (1) fails to meet a consumer product safety standard or banning regulation, (2)
contains a defect which could create a substantial product hazard to consumers, (3) creates an
unreasonable risk of serious injury or death, or (4) fails to comply with a voluntary standard
upon which the Commission has relied under the CPSA.” (CPSC Recall Handbook, available at
http://www.cpsc.gov/businfo/8002.html#Sec15) If necessary, the CPSC “evaluates whether or
when a firm should have reported,” which “evaluation will be based, in part, on what the
company actually knew about the hazard posed by the product or on what a reasonable person,
acting under the circumstances, should have known about the hazard while exercising due
care.” (Id., emphasis in original.)
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Ex. E (August 19, 2008 CPSC Letter) at 1) As part of its investigation, the CPSC asked Spin
Master to respond to a series of requests for information and documents. (Id.) Spin Master
responded in a series of letters, two of which are relevant here — an October 17, 2008 letter, and
a June 19, 2009 letter. These letters are relevant to this motion because they contain statements
that contradict allegations Spin Master asserts in this case as the very basis for its claims. (Ungar
Decl. Ex. F (October 17, 2008 letter) and Ex. G (June 19, 2009 letter))3
Spin Master’s June 19, 2009 letter to the CPSC contains the following assertions:
(Ungar Decl. Ex. G (June 19, 2009 letter) at 3, 4)
Spin Master’s October 17, 2008 letter contains the following assertions:
3 Spin Master filed the October 17, 2008 and June 19, 2009 letters under seal. EPSL does
not agree that these letters or other materials referenced as exhibits meet the requirements of the
Stipulated Protective Order, D.E. 74, considering that, among other things, the materials are
correspondence with the CPSC which may be released to the public in response to a FOIA
request. Solely to avoid a fight, EPSL will file these materials under seal and redact those
portions of this brief that quote from such materials. EPSL reserves the right to contest Spin
Master’s confidentiality designations.
Redacted
Redacted
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(Ungar Decl. Ex. F (October 17, 2008 letter) at 27, 35, emphasis added)
The assertions in these two letters are at odds with Spin Master’s position in this action
that Aqua Dots was toxic, and thus EPSL was negligent and grossly negligent for failing to
detect as much. Notably, in explaining to the CPSC why Aqua Dots is not toxic, Spin Master
refers to both 16 CFR 1500.3(2)(c) and 16 CFR 1500.3(b)(5). (Ungar Decl. Ex. G (June 19,
2009 letter) at 3) The magnitude of this cannot be ignored:
1. 16 CFR 1500.3(2)(c)(i) is the very (and only) provision under which EPSL
was tasked to and conducted the acute oral toxicity test at issue in this
litigation. (Ungar Decl. Ex. C (Bureau Veritas Test Request Form To EPSL at
SP228500 and EPSL Test Report at SP228499))
2. 16 CFR 1500.3(b)(5) is a provision that Spin Master, in the context of this
litigation only, tries to use to make an argument that the sample given to
Bureau Veritas (and then to EPSL) is in fact toxic (notwithstanding that EPSL
was not asked to perform a test under this provision, and everyone, including
Spin Master’s non-testifying expert, now agrees that EPSL’s conclusion was
correct under the provision it was asked to address).
Thus, while arguing to this Court that the Aqua Dots sample was toxic under 16 CFR
1500.3(2)(c)(i) and 16 CFR 1500.3(b)(5), Spin Master was arguing simultaneously to the CPSC
that the sample was not toxic under those exact same provisions. Of particular relevance is that
these are not a couple of stale letters written years ago before Spin Master knew the facts — the
June 19, 2009 letter was written after Spin Master commenced this case and made its assertions
here about Aqua Dots’ toxicity, and the October 17, 2008 letter was written only a few months
before Spin Master sued (indeed, the letters bring into question the good faith basis for this case).
Redacted
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Putting aside the issue of toxicity, the June 19, 2009 letter also contradicts Spin Master’s
assertion in this action that it relied on EPSL’s test report in making the decision to continue to
distribute and sell Aqua Dots:
(Ungar Decl. Ex. G (June 19, 2009 letter) at 5) (emphasis added)
Based on these statements, it appears Spin Master’s decision to continue distributing and
selling Aqua Dots was based on reports by MJN Associates dated October 25, 2007, Intertek
Testing Services Hong Kong, Ltd. dated October 29 and 30, 2007, and Chemir Analytical
Services dated October 31, 2007 (see Ungar Decl. Ex. F (October 17, 2008 letter) at 20-23),
rather than the August 10, 2007 EPSL test report which Spin Master did not receive until
October 11, 2007, six months after it already was selling the product to the market.
Nevertheless, Spin Master maintains a contrary position as the basis for its claims here.
C. The Discovery Sought
The above description makes plain that the two letters at issue are relevant, and Spin
Master does not even argue otherwise. In the ordinary course, Defendants, as would any party,
seek to depose the author. Here, however, Spin Master resists that deposition because the author
happens to be its outside lawyer. As discussed below, Spin Master cannot insulate itself from
Redacted
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discovery because it chose to have its outside lawyer make factual representations and assertions
to the CPSC that now prove to be inconvenient in the context of this case.
ARGUMENT
THE DEPOSITION IS RELEVANT AND REASONABLY CALCULATED TO LEAD TO
THE DISCOVERY OF ADMISSIBLE EVIDENCE, AND THERE IS NO APPLICABLE
EXCEPTION TO THE GENERAL RULE THAT WARRANTS A PROTECTIVE ORDER
It is well-settled that the Federal Rules of Civil Procedure envision a liberal discovery
regime, allowing parties to obtain discovery “regarding any nonprivileged matter that is relevant
to any party’s claim or defense[.]” FED. R. CIV. P. 26(b)(1) (emphasis added). Likewise, the
rules provide that, generally, “[a] party may, by oral questions, depose any person, including a
party, without leave of court[.]” FED. R. CIV. P. 30(a)(1) (emphasis added). Because the federal
rules contemplate a broad and permissive discovery system, the burden of persuasion for a
protective order limiting such discovery must be borne by the moving party. See, e.g., Dove v.
Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992) (“Where . . . the [discovery is] relevant,
the burden is upon the party seeking non-disclosure or a protective order to show good cause.”)
(internal quotation marks omitted, brackets in original); Genal Strap, Inc. v. Dar, CV 2004-1691,
2006 U.S. Dist. LEXIS 11474, at *3 (E.D.N.Y. Mar. 3, 2006).
Here, Spin Master does not contest that the deposition of the author of the relevant letters
normally would be permissible and appropriate. Instead, it claims that the deposition should not
be allowed for the sole reason that the author happens to be Spin Master’s outside lawyer. That
is not a basis to stymie legitimate discovery under the circumstances present here.
A. The Deposition Of Mr. Rothstein Is Appropriate Here Based On Controlling Law
According to the Second Circuit, and contrary to the impression Spin Master seeks to
give, “the fact that the proposed deponent is a lawyer does not automatically insulate him or her
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from a deposition nor automatically require prior resort to alternative discovery devices.” In re
Friedman, 350 F.3d 65, 72 (2d Cir. 2003). In re Friedman is a watershed case, as the Second
Circuit held that “the deposition-discovery regime of the Federal Rules of Civil Procedure
requires a more flexible approach to attorney depositions” than the more rigid rule that courts
had previously applied. Id. at 67. It is worthy of note that Spin Master’s authorities are the very
ones the Second Circuit rejected in In re Friedman.4
In any event, via In re Friedman the Second Circuit established a four-part test that courts
in this Circuit use to evaluate attorney depositions: (i) the need to depose the lawyer, (ii) the
lawyer’s role in connection with the matter on which discovery is sought and in relation to the
pending litigation, (iii) the risk of encountering privilege and work-product issues, and (iv) the
extent of discovery already conducted. In re Friedman, 350 F.3d at 72.
1. Factor 1: EPSL Has A Demonstrable Need To Depose Mr. Rothstein
a. The Information Sought Is Relevant
Courts weighing the Friedman factors refer to the relevancy standards of the Federal
Rules. See, e.g., Tailored Lighting, Inc. v. Osram Sylvania Products, Inc., 255 F.R.D. 340, 343
(W.D.N.Y. 2009) (applying the Friedman factors and holding “[t]he threshold requirement of
discoverability under the Federal Rules of Civil Procedure is whether the information sought is
relevant to any party’s claim or defense. To be discoverable, the information need not be
4 For instance, Spin Master relies on United States v. Yonkers Board of Education, 946
F.2d 180, 185 (2d Cir. 1991), for the general premise that “depositions of opposing counsel are
disfavored.” This case has been superseded by In re Friedman, as has been noted by other cases.
See Creditsights, Inc. v. Ciasullo, 05 Civ. 9345, 2009 WL 3821441, at *1 n.1 (S.D.N.Y. Nov. 6,
2009) (“We note that plaintiff relies on what appears to be outdated dictum from United States v.
Yonkers Bd. of Educ., 946 F.2d 180 (2d Cir. 1991). For a more updated dictum, which eschews
prior seeming reliance on Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), we
refer to the Second Circuit’s analysis in Dennis Friedman.”).
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admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence”) (internal citations and quotation marks omitted).
There can be little doubt that the deposition sought is relevant. Spin Master’s claims in
this case center on its contention that Aqua Dots was toxic, Defendants were negligent in failing
to detect such toxicity, and Spin Master relied on the “not toxic” conclusions in deciding to sell
the product. Throughout the course of the CPSC’s investigation into how Spin Master handled
the Aqua Dots situation, however, Mr. Rothstein authored several letters asserting as a factual
matter that, among other things, (i) Aqua Dots was not toxic, (ii) Spin Master relied on a number
of tests and entities other than Bureau Veritas and EPSL in deciding to sell Aqua Dots and keep
it on the market, and (iii) every other testing company Spin Master used also concluded that the
sample was not toxic under the relevant regulations, thereby belying the notion that EPSL’s and
Bureau Veritas’ similar finding was negligent. These topics are not merely tangentially relevant
to this case; rather, they go to the very core of the factual disputes in this litigation.
b. Mr. Rothstein Is Privy To The Facts He Communicated
To The CPSC And He Is A Necessary Witness
Spin Master argues that Mr. Rothstein’s deposition is not necessary because “[h]e was
not involved in the recall of Aqua Dots, [and] he is not a witness to any of the events concerning
the recall [...].” (Spin Master Memorandum of Law, D.E. 102-1 (“Spin Master Br.”) at 4) This
misses the point. EPSL is unconcerned with Mr. Rothstein’s role in the recall. Mr. Rothstein
authored at least two letters that he sent to the CPSC in which he makes various factual
assertions that are devastating to Spin Master’s case here. Mr. Rothstein plainly has knowledge
about those statements, otherwise he would not have been able to make them (presumably he did
not simply make up these facts, but even if he did, that would be something Defendants would be
entitled to learn at his deposition).
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Equally unavailing is Spin Master’s contention that Mr. Rothstein lacks firsthand
knowledge of the facts he averred to the CPSC. (Spin Master Br. at 6) Aside from being
questionable (as noted, presumably Mr. Rothstein had some basis for making factual
representations to the United States government), the lack of “firsthand knowledge” is not a bar
to a deposition. See Tailored Lighting, 255 F.R.D. at 345. Contrary to Spin Master’s assertions
(Spin Master Br. at 8 n.3), the facts of Tailored Lighting are analogous to those present here. In
that case, defendant Sylvania moved for a protective order precluding plaintiff from deposing
Sylvania’s in-house counsel, Mitchell, in a case involving allegations of patent infringement that
pre-dated Mitchell’s employment as in-house counsel. Id. at 343, 345. Much like Mr. Rothstein,
who on behalf of Spin Master provided information to the CPSC in response to its requests for
information, Mitchell on behalf of Sylvania provided interrogatory responses. Id. In
determining the need for Mitchell’s deposition, the court recognized the interest in exploring the
bases for Sylvania’s interrogatory responses, and overruled Sylvania’s objection that plaintiff
should be relegated to deposing all individuals who may have assisted Mitchell in preparing the
interrogatory responses (pretty much the argument Spin Master makes here). Id. at 345.
Significantly, the court stated that Mitchell “appear[ed] to be the only witness who could testify
to the myriad bases for [his client]’s interrogatory responses,” and “[a]lthough his responses are
not likely to be based on firsthand knowledge, that limitation alone should not preclude
[plaintiff] from examining in the most effective way possible the sources of information upon
which the answers are based.” Id. at 345. Balancing the pertinent Friedman factors, the court
concluded that Mitchell should be deposed. Id. at 346.
Notwithstanding Spin Master’s argument that EPSL should first seek information on the
subpoena topics from Spin Master employees or through written discovery, Mr. Rothstein “can
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certainly offer unique information given his primary role in the subject of each [deposition]
topic.” Murata Manufacturing Co., Ltd. v. Bel Fuse Inc., M8-85, 2007 U.S. Dist. LEXIS 97126,
at *3, *4 (S.D.N.Y. Apr. 19, 2007) (permitting deposition of litigation counsel). It would be
utterly unfair if Spin Master were allowed to immunize itself from discovery simply by choosing
to provide facts to the CPSC through its counsel. This is especially true considering that Spin
Master was not obligated to communicate with the CPSC through counsel, much less outside
counsel. Mr. Rothstein was or should have been aware that by taking on the role as his client’s
spokesperson vis-à-vis the United States government in a non-lawsuit setting, he made himself a
fact witness, and Spin Master made that choice at its own risk.5 As the court held in Murata,
“[defendant] should not be able to avoid inquiry into a relevant subject by choosing for trial the
same attorney who provided the advice-of counsel Opinion on which the party relies. Attorneys
with discoverable facts, not protected by attorney-client privilege or work product,6 are not
exempt from being a source for discovery by virtue of their license to practice law or their
employment by a party to represent them in litigation.” Id. at *5 (internal citations and quotation
marks omitted).
Moreover, Mr. Rothstein appears to be one of the only (if not the only) Spin Master
witness from whom Defendants can take testimony on these factual representations made to the
CPSC, as it appears no one else at Spin Master made such factual representations to the CPSC.
And even if there turns out to be another witness that has relevant knowledge, that does not
5 In that context, it bears mentioning that Mr. Rothstein does not state in his letters that he
merely is passing on facts of which he lacks knowledge. Quite obviously, the CPSC would not
have accepted a letter stating that the author has no idea if any of the facts asserted are true. Spin
Master cannot use Mr. Rothstein as the proverbial sword by having him assert facts when
needed, but then use him as a shield to disavow personal knowledge when the factual assertions
become inconvenient.
6 As discussed below, infra at 15-17, there is no privilege issue here.
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obviate the need to take testimony from Mr. Rothstein. Clearly there is going to be a credibility
fight on these points, so having favorable testimony from Mr. Rothstein is going to be critical in
rebutting the contrary positions Spin Master is asserting in this case.
2. Factor 2: Mr. Rothstein Plays An Integral Role In The CPSC Letters,
And The Deposition Sought Is Not Based On His Role As Counsel In This Case
There is no arguing about whether Mr. Rothstein had a role in the matters to be covered
at the deposition, as he is the author of the very letters at issue, and as such, he is right at the
center of the matters to be addressed. While it is also true that Mr. Rothstein is Spin Master’s
counsel in this case, the deposition has nothing to do with his role in that regard, and there will
be no questions about his conduct or actions in this case. The deposition will be limited to his
involvement in the CPSC investigation and related matters outside of this case.
Spin Master cites Sea Tow International, Inc. v. Pontin, 246 F.R.D. 421 (E.D.N.Y. 2007)
for the proposition that Mr. Rothstein’s role as trial counsel weighs against permitting his
deposition. (Spin Master Br. at 9) That case is easily distinguishable. In Sea Tow, the court did
not allow the deposition because it found that the testimony sought concerned only the attorney’s
role as legal counsel and his legal advice, not any facts of which the lawyer might have had
knowledge. Id. at 427. Here, of course, Mr. Rothstein averred various relevant facts to the
CPSC (i.e., what Spin Master relied upon in selling and keeping Aqua Dots on the market, and
whether Aqua Dots is toxic). The deposition does not concern Mr. Rothstein’s legal advice to
Spin Master, as was the case for the deposition sought in Sea Tow.
Similarly distinguishable is New York Independent Contractors Alliance, Inc. v.
Highway, Road and Street Construction Laborers Local Union 1010, 07-CV-1830, 2008 U.S.
Dist. LEXIS 95328 (E.D.N.Y. Nov. 24, 2008), another case Spin Master relies upon. (Spin
Master Br. at 7) That case concerned whether a collective bargaining agreement had been
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renewed before a date certain, but the lawyer letters giving rise to the request for the deposition
all were written long after the applicable timeframe and did not reflect any facts that the lawyer
might have known; rather, the letters constituted legal argument about why the collective
bargaining agreement supposedly renewed automatically. Id. at *10-11, *21-22.
Spin Master also cites Gragg v. International Management Group, Inc., 5:03-CV-0904,
2007 WL 1074894, at *9, *10 (N.D.N.Y. Apr. 5, 2007) in its sections regarding the first and
second Friedman factors. (Spin Master Br. at 8, 9) First, plaintiff sought to depose the adversary
lawyer concerning compliance with outstanding discovery requests, not factual knowledge
gained outside of the litigation. Id. at *10. Second, and more importantly, Spin Master fails to
disclose that the Gragg decision came with a critical comment that guts the basis for which Spin
Master cites the case. The court noted that its “ruling regarding [the attorney] is limited to the
matters which plaintiff announced he would be seeking to explore in her deposition. To the
extent that [she] may possess factual information that is not privileged and is relevant to the
claims and defenses in the action, the court might take a different view regarding her
deposition.” Id. at *10 n.14 (emphasis added).
In contrast to the scenarios present in Spin Master’s cited cases, EPSL wishes to examine
Mr. Rothstein not about his role as Spin Master’s legal counsel in this action or anything he did
or said in such role, but about his role as Spin Master’s mouthpiece to the CPSC through which
Spin Master chose to make various factual assertions. Wearing his CPSC hat, Mr. Rothstein
made factual assertions that are relevant to key issues in this action and that are not in accord
with the position Spin Master maintains in the present case. EPSL is interested only in exploring
these inconsistent factual assertions, not any “legal opinions, conclusions [or] interpretations”
Mr. Rothstein may have provided to Spin Master in his role as trial counsel. See, e.g., Sea Tow,
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246 F.R.D. at 426. In other words, Mr. Rothstein’s position as Spin Master’s trial counsel is
irrelevant to the discovery EPSL seeks.
3. Factor 3: There Is No Privilege Issue
a. This Issue Has Been Resolved Conclusively
Though Spin Master argues that the deposition would “impermissibly encroach on the
attorney-client privilege and work product doctrine” (Spin Master Br. at 10), Spin Master fails to
disclose that it already litigated this issue and lost, so there is no privilege concern. Initially,
Spin Master refused to produce its communications with the CPSC in the underlying products
liability multi-district litigation case, arguing privilege and work product protection. That issue
was litigated fully, Spin Master lost, and the MDL court ruled that the materials and information
are not privileged or protected, and to the extent they ever were, such protections were waived.
(Ungar Decl. Ex. H (MDL Order) at 7-8, 9, 14) That decision is the end of the inquiry, and Spin
Master has no legitimate basis to try to argue privilege over again here. See, e.g., Urban Box
Office Network, Inc. v. Interfase Managers, L.P., 01 Civ. 8854, 2004 U.S. Dist. LEXIS 21229, at
*16 (S.D.N.Y. Oct. 19, 2004) (“waiver of the privilege in one case renders it unavailable in later
cases”); D’Andrea v. Hulton, 81 F. Supp. 2d 440, 443 (W.D.N.Y. 1999) (“[T]he doctrine of
collateral estoppel (or ‘issue preclusion’) precludes a party from relitigating in a subsequent
action or proceeding an issue clearly raised in a prior action or proceeding and decided against
that party . . . whether or not the tribunals or causes of action are the same.”) (internal quotation
marks omitted).
b. Privilege/Work Product Has Been Waived
As noted, Spin Master already litigated and lost the privilege issue. As a result, it produced to
Defendants in this case the letters at issue, as well as other communications Spin Master had
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16
with the CPSC. In addition to the conclusive ruling in the MDL case that effectively ends the
issue, that Spin Master produced the materials here knowingly, and has not sought to recapture
them as an inadvertent disclosure (in light of the MDL decision and the reason Spin Master
produced, obviously the disclosure was not inadvertent), to the extent there could be an argument
that somehow the MDL decision is not conclusive, Spin Master nevertheless has waived any
privilege by voluntarily producing the materials to Defendants in this case. See, e.g., Urban Box
Office Network, Inc. v. Interfase Managers, L.P., 01 Civ. 8854, 2004 U.S. Dist. LEXIS 21229, at
*9 (S.D.N.Y. Oct. 19, 2004) (“privilege is waived if the holder of the privilege voluntarily
discloses or consents to disclosure of any significant part of the communication to a third party
or stranger to the attorney-client relationship.”).
Likewise, to the extent the communications or work ever was privileged, as the MDL
court found, it was waived once Spin Master gave it to the CPSC, an adversary. See In re
Steinhardt Partners, L.P., 9 F.3d 230, 235 (2d Cir. 1993) (“The waiver doctrine provides that
voluntary disclosure of work product to an adversary waives the privilege as to other parties.”);
In re Initial Pub. Offering Sec. Litig., 249 F.R.D. 457, 466 (S.D.N.Y. 2008) (adversarial
relationship between defendant and investigating government agencies meant defendant waived
privileges by disclosing memoranda to such agencies during the course of investigations).
c. Mr. Rothstein’s CPSC Communications
Are Not Privileged As A Substantive Matter
It is well-accepted that while attorney-client communications are subject to protection,
“underlying facts do not become privileged simply because they were transmitted from client to
attorney.” Genal Strap, Inc. v. Dar, CV 2004-1691, 2006 U.S. Dist. LEXIS 11474, at *10
(E.D.N.Y. Mar. 3, 2006) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)); see
also Disability Advocates, Inc. v. Paterson, 03-CV-3209, 2008 U.S. Dist. LEXIS 103310, at *56
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(E.D.N.Y. Dec. 22, 2008) (“The Supreme Court has held that the attorney-client privilege only
protects disclosure of communications; it does not protect disclosure of the underlying facts by
those who communicated with the attorney.”) (internal quotation marks omitted); Mislin v. City
of Tonawanda Sch. Dist., 02-CV-273S, 2004 U.S. Dist. LEXIS 21774, at *5 (W.D.N.Y. Oct. 27,
2004) (same). EPSL wishes to examine Mr. Rothstein about the factual assertions he made to
the CPSC. Even if these facts were communicated to him by Spin Master, attorney-client
privilege does not attach to such facts.
Moreover, as relevant here, the communications at issue were between Mr. Rothstein and
the CPSC, an entity that was not his client, and in fact an entity that both Mr. Rothstein and Spin
Master considered to be an adversary in an important matter (Spin Master’s compliance with
federal law). (Spin Master Br. at 2) Under the circumstances, no communications Mr. Rothstein
had with the CPSC ever could have been privileged from moment one. See Ungar Decl. Ex. H
(MDL Order) at 7-8, 9, 14; In re Initial Pub. Offering Sec. Litig., 249 F.R.D. at 466.
4. Factor 4: Extent Of Discovery So Far Does Not Obviate The Deposition
As noted, Spin Master has maintained in this case from the outset that the Aqua Dots
sample it provided for testing was toxic, that Bureau Veritas and EPSL should have figured that
out, and that Spin Master relied on Bureau Veritas/EPSL’s test results in deciding to sell the
product to the public. Mr. Rothstein’s letters to the CPSC constitute the first direct evidence
Defendants have obtained demonstrating that not even Spin Master believes the story it is trying
to sell in this case.7 Likewise, there has been no other testimony from Spin Master in this case
that makes the point as clearly. As to deposing some Spin Master employee about
Mr. Rothstein’s letters (Spin Master’s basis for arguing that Mr. Rothstein’s deposition is
7 Note that Spin Master produced these letters only recently, and only after it was ordered
to do so by the MDL court, so getting even these documents from Spin Master has been arduous.
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unnecessary, Spin Master Br. at 9, 11), quite obviously, that person will have the ability to
disavow anything in Mr. Rothstein’s letters by stating that such witness was not the author and
he/she does not know how or why Mr. Rothstein made the factual assertions he made. In short,
there is no substitute for deposing the actual author of a letter containing damning admissions,
and no other discovery taken to date or to be taken can make that deposition superfluous.
Beyond that, Spin Master’s suggestion that Defendants can get the same information
from a 30(b)(6) deposition is disingenuous in the extreme. EPSL previously served a 30(b)(6)
notice seeking a deposition on “Spin Master’s Communications with the U.S Consumer Product
Safety Commission Concerning Aqua Dots.” (Ungar Decl. Ex. I (EPSL 30(b)(6) notice) Topic
20) Spin Master objected in toto, refusing to provide a witness on that subject. (Ungar Decl.
Ex. J (Spin Master 30(b)(6) objection) Topic 20) Spin Master cannot avoid Mr. Rothstein’s
deposition by seriously suggesting the alternative of a 30(b)(6) notice with which Spin Master
already has refused to comply. Regardless, and quite obviously, Defendants are not limited to a
30(b)(6) deposition in lieu of deposing an identifiable person known to have discoverable
information. Cf. Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 95 Civ. 8833, 1999
U.S. Dist. LEXIS 8929, at *7-9 (S.D.N.Y. June 14, 1999) (permitting defendant to pursue fact
depositions of seven former employees rather than one Rule 30(b)(6) witness).
Further, much like the in-house counsel in Tailored Lighting, who “appear[ed] to be the
only witness who could testify to the myriad bases for [his client]’s interrogatory responses”
(Tailored Lighting, 255 F.R.D. at 345), Mr. Rothstein ostensibly is the only witness whose
testimony can shed light on the facts he relied on in making his statements to the CPSC. Asking
any other witness that question (“what was the basis for Mr. Rothstein to write X?”) is likely to
prompt a response of, “I don’t know, ask Mr. Rothstein.” Even if a witness were willing and
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actually gave an answer, its usefulness at trial would be questionable, as that testimony would be
subject to a foundation or double hearsay objection, as it is difficult for one witness to testify
competently about the rationale for the conduct of another.
Spin Master argues that “any questions posed to Mr. Rothstein as to what led him to
make certain statements to the CPSC would concern facts based entirely on hearsay that he
learned through privileged communications with his client […].” (Spin Master Br. at 7) As
noted above, any notion of privilege with respect to these CPSC communications is long gone.
See supra at 15. As to hearsay, that is an evidentiary objection, not a discovery objection. See
Holman v. ICN Pharm., Inc., 98 Civ. 0674, 1999 U.S. Dist. LEXIS 20017, at *4 (S.D.N.Y. Dec.
29, 1999) (“the fact that Panic may have no personal knowledge of the decision to withdraw
Trisoralen and knows only what he was told by others does not affect the appropriateness of
taking his deposition. Even hearsay is fair ground in discovery.”) (citing Litton Systems, Inc. v.
Am. Tel. & Tel. Co., 700 F.2d 785, 827 (2d Cir. 1983) (internal citation omitted)).
Finally, Spin Master’s argument that its written “communications [with the CPSC] speak
for themselves” is a non-answer. (Spin Master Br. at 6) If this were true, then no deposition of
any witness in a commercial case ever would be permitted, as every document ostensibly
“speaks for itself.” Being the author of key documents is a primary reason for getting deposed,
not an excuse to avoid that obligation. Regardless, as noted at the outset, the Court can rest
assured that Spin Master and Mr. Rothstein will come up with some argument as to why these
documents should not be taken at their face value, and Defendants are entitled to learn such
arguments through the discovery process.
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B. Spin Master’s Accusation Of Impropriety Is Wholly Unsubstantiated
Spin Master baldly asserts that EPSL’s subpoena constitutes an “improper and harassing
discovery tactic.” (Spin Master Br. at 11) Considering that Spin Master refused to produce its
facially relevant communications with the CPSC and had to be ordered by a court to do so, its
accusation of improper discovery tactics is ironic. Regardless, Spin Master’s accusations are
baseless. Spin Master has produced correspondence that is very damaging to its case. EPSL
seeks no more than to depose the author of that correspondence. To be sure, if the
communications at issue had been authored by a Spin Master employee or anyone else on the
planet other than Mr. Rothstein, EPSL still would be seeking to take the deposition of the author,
and likely Spin Master would have no objection about it. That Spin Master put Mr. Rothstein in
the circumstance of being a relevant fact witness is not a circumstance of EPSL’s making, and it
certainly does not present a basis for accusing EPSL of impropriety.
C. Seventh Circuit Law Does Not Preclude The Deposition
Although not relevant because Second Circuit law controls this motion (Texaco Inc. v.
Pennzoil Co., 784 F.2d 1133, 1156 (2d Cir. 1986) (“a forum has compelling reasons for applying
its own procedural rules and enormous burdens are avoided when a court applies its own rules,
rather than the rules of another state, to issues relating to judicial administration”) (internal
citations and quotation marks omitted); In re Ski Train Fire, 343 F. Supp. 2d 208, 217 n.8
(S.D.N.Y. 2004) (“A transferee federal court should apply its interpretations of federal law, not
the constructions of the transferor circuit. No litigant has a right to have the interpretation of one
federal court rather than that of another determine [her] case. This principle applies to federal
procedural law as well as substantive law. Because discovery is unquestionably an issue of
federal procedural law, the resolution of discovery issues is governed by the law of the Second
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21
Circuit.”) (internal citations and quotation marks omitted, brackets in original); Astra Aktiebolag
v. Andrx Pharms., Inc., 208 F.R.D. 92, 102 (S.D.N.Y. 2002) (“[L]aw regarding document
disclosure is procedural. Courts use choice-of-law rules to determine whether to apply another
forum’s substantive law but always use their own procedural rules.”) (internal citation omitted)),
Spin Master and Mr. Rothstein cite Seventh Circuit law in their motion to quash because that
motion initially was brought in the Northern District of Illinois. Likewise, because the motion
for protective order and the motion to quash are substantially identical, this opposition focuses
on the allegations and cases set forth in the motion for protective order. Nevertheless, and solely
to avoid any argument that silence connotes consent, EPSL briefly addresses the non-
overlapping cases relied on in the motion to quash.
The motion to quash mistakenly assumes that the Eighth Circuit’s decision in Shelton v.
American Motors Corp., 805 F.2d 1323 (8th Cir. 1986) provides the governing framework for
determining whether an attorney deposition is appropriate.8 First, as mentioned supra at 8-9, the
Second Circuit has rejected Shelton, finding that “the deposition-discovery regime of the Federal
Rules of Civil Procedure requires a more flexible approach than the rigid Shelton rule.” In re
Friedman, 350 F.3d at 67. Indeed, this Court recently addressed the issue of when counsel can
be deposed and it relied entirely on Friedman, without even a mention of Shelton, further
demonstrating that Shelton is not the law in this circuit. See Tailored Lighting, 255 F.R.D. at
344. Accordingly, Shelton cannot be relied upon here. Second, Shelton, an Eighth Circuit case,
would not even be controlling in the Seventh Circuit, as that court has not addressed whether the
8 Shelton requires the party seeking the deposition to demonstrate that: “(1) no other means
exist to obtain the information than to depose opposing counsel; (2) the information sought is
relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.”
Shelton, 805 F.2d at 1327 (internal citation omitted). For the reasons noted above (supra at 8-
19), EPSL could satisfy this standard too, even though it is not applicable.
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factors announced in Shelton apply to the relevant analysis. See, e.g., Wilson v. O’Brien, 07 C
3994, 2010 U.S. Dist. LEXIS 33721, at *7 (N.D. Ill. Apr. 6, 2010) (“Since Shelton was decided,
several courts have applied the factors set out in that case. However, neither the Seventh Circuit
nor the Supreme Court is among their numbers […]. In fact, other courts have disapproved of
the Eighth Circuit’s approach on the ground that it is overly strict.”) (internal citations omitted).
Indeed, courts within the Seventh Circuit are split as to whether Shelton applies. A
number of cases in the Northern District of Illinois (where Spin Master and Mr. Rothstein
initially moved to quash) expressly have rejected Shelton. See Wilson v. O’Brien, 07 C 3994,
2010 U.S. Dist. LEXIS 33721, at *7 (N.D. Ill. Apr. 6, 2010) (rejecting overly strict Shelton
factors in favor of more flexible approach); Qad.inc v. ALN Associates, Inc., 132 F.R.D. 492,
494-95 (N.D. Ill. 1990) (Shelton “must be viewed as wrong” and requiring prior resort to other
discovery devices would be “less efficient, more expensive, [and] more time consuming”); Srail
v. Vill. of Lisle, 07 C 2617, 2007 U.S. Dist. LEXIS 92363, at *6 (N.D. Ill. Dec. 12, 2007)
(“Shelton analysis does not apply when the topics of deposition involve counsel’s knowledge of
a prior underlying matter that is relevant to the current litigation”). As for those cases that do not
reject Shelton outright, each of them includes a determination that the party seeking the
deposition failed to demonstrate that no other means existed for obtaining the relevant
information. Because Mr. Rothstein, as the author of the CPSC communications at issue, is the
only source from whom the relevant information can be obtained in a direct and efficient
manner, EPSL should not have to embark upon a wild goose chase of “roundabout” discovery
devices to uncover the factual information that Mr. Rothstein clearly possesses. Qad.inc., 132
F.R.D. at 494.
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CONCLUSION
For the foregoing reasons, this Court should deny the motion for protective order, deny
the motion to quash, and order Mr. Rothstein to appear for deposition.
Dated: New York, New York
February 18, 2011
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
By: s/ Dorit Ungar
Daniel P. Goldberg
Dorit Ungar
Avi Israeli
1633 Broadway
New York, New York 10019
(212) 506-1700
Attorneys for Defendant
Eurofins Product Safety Labs, Inc.
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CERTIFICATE OF SERVICE
I, Dorit Ungar, hereby certify that on February 18, 2011, I caused (a) Eurofins Product
Safety Labs, Inc.’s Memorandum of Law in Opposition to Plaintiff Spin Master Ltd.’s Motion
For Protective Order and Spin Master Ltd.’s and Ronald Y. Rothstein’s Motion to Quash Non-
Party Subpoena; and (b) the Declaration of Dorit Ungar, including Exhibits A through J, to be
served on the following counsel of record by Electronic Case Filing:
Ronald Y. Rothstein, Esq.
Bryna J. Dahlin, Esq.
WINSTON & STRAWN LLP
35 West Wacker Drive
Chicago, Illinois 60601
Theodore V. H. Mayer, Esq.
Eric Blumenfeld, Esq.
HUGHES HUBBARD & REED LLP
One Battery Park Plaza
New York, New York 10004
Of Counsel:
Dennis R. McCoy, Esq.
HISCOCK & BARCLAY, LLP
1100 M&T Center
3 Fountain Plaza
Buffalo, New York 14203
Attorneys for Plaintiff Spin Master Ltd.
Of Counsel:
Keith N. Bond, Esq.
WALSH, ROBERTS & GRACE
400 Rand Building
Buffalo, New York 14203-1928
Attorneys for Defendant
Bureau Veritas Consumer Products Services, Inc.
Dated: February 18, 2011
s/ Dorit Ungar
Dorit Ungar
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