Commercial Division Blog

Posted: September 1, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Motion to Compel, Discovery/Disclosure, Deposition

Court Compels Deposition of Individual with Unique Personal Knowledge of Critical Factual Issues

On July 3, 2023, Justice Andrew Borrok of the New York County Commercial Division issued a decision in Apotex Corp. v. Hospira Healthcare India Private Ltd., 2023 N.Y. Misc. LEXIS 3340, granting defendants’ motion to compel the plaintiff to produce a specific individual for a deposition.  The Court had previously denied a motion seeking the same relief without prejudice as premature.  The Court now determined that the defendants had sufficiently shown that the individual possessed unique personal knowledge that other deponents and discovery had not been able to provide, explaining:

This Court previously denied the defendants' motion to compel Mr. Glasenberg's deposition without prejudice as premature and directed the defendants to renew its request if, after conducting additional discovery, it determined that Mr. Glasenberg's testimony remained critical and necessary (NYSCEF Doc. No. 380).  Following further discovery, the defendants have determined that his deposition is critical and necessary because the other witnesses they have deposed have been unable to provide evidence sought about the 1827216 entity and its relationship with Apotex and Qilu.  This information is critical to the defendants' breach of contract counterclaim because it is alleged that the 1827216 entity was set up — by Mr. Glasenberg on Apotex's behalf - as a way for Apotex to work around its contractual obligation to use the defendants as its exclusive supplier of generic sterile injectables. Additionally, further discovery has uncovered that Mr. Glasenberg might have additional information concerning the accuracy of Apotex's financial statements and its failure to supply penalties. The defendants are entitled to Mr. Glasenberg's deposition because he has unique personal knowledge of these issues which are critical to the defendants' defense and to its breach of contract counterclaim against the plaintiff.

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning motions to compel depositions or other discovery or the showing necessary to compel the deposition of a critical fact witness