Top banks oppose requests for apex depositions in FX benchmark rate rigging case
The banks want the Court to quash the plaintiffs’ notices for apex depositions of current and former senior legal counsel and executives of HSBC, RBS, JPM, UBS, Barclays, and Citi.
A Forex benchmark rate fixing case targeting a number of top banks continues to develop at the New York Southern District Court, with the defendants seeking to quash plaintiffs’ requests for apex depositions of a number of senior executives and legal counsel at the banks.
On November 22, 2017, a counsel for Barclays PLC (LON:BARC), writing on behalf of all defendants in the case, captioned Nypl v. JP Morgan Chase & Co. et al (1:15-cv-09300), addressed the Honorable Lorna G. Schofield, asking her to dismiss the plaintiffs’ requests for apex depositions. Let’s clarify that these are typically depositions of a top level executive. The party who seeks an apex deposition (in this case, the plaintiffs) should prove that the executive possesses superior or exclusive knowledge of the discoverable information.
The plaintiffs seek depositions from:
- Stuart Alderoty, Esq., former Senior Executive Vice President and General Counsel, HSBC Bank USA, N.A.;
- Marc Moses, Executive Director and Group Chief Risk Officer, HSBC Holdings plc;
- James Fuqua, Esq., General Counsel, UBS Securities LLC, Investment Bank Americas;
- Axel Weber, Chairman of the Board of Directors, UBS Group AG;
- Matthew Fitzwater, Esq., Global Head of Litigation, Investigations, and Enforcement, Barclays PLC;
- Rohan Weerasinghe, Esq., General Counsel and Corporate Secretary, Citigroup, Inc.;
- Stephen Cutler, Esq., former General Counsel and current Vice Chairman, JPMorgan Chase & Co.;
- James Esposito, Esq., Global General Counsel, NatWest Markets and General Counsel (Americas), Royal Bank of Scotland.
Although the banks have already indicated their opposition, the plaintiffs declined to withdraw the notices.
The banks note that they have over 1.5 million pages of documents for plaintiffs to review, production of which is not even due until November 27. This way, the request for apex depositions is untimely and adds to paperwork burden.
Also, the plaintiffs issued the notices before even receiving a single document from the defendants, and the notices are the first depositions that Plaintiffs have sought. As such, according to the banks, the plaintiffs have no basis on which to demonstrate that the current or former high-level executives sought to be deposed by the Notices have any “unique knowledge of the issues in the case.”
Moreover, the defendants argue that the plaintiffs are seeking the noticed depositions not because of any unique knowledge specific to the putative deponents, but because they believe that those individuals will be able to identify easily for Plaintiffs specifically “what documents” the defendants relied upon in settling regulatory charges and “which documents show the violation which [Defendants] have pled guilty to.”
Also, the defendants assert that the plaintiffs’ strategy seeks to elicit improper privileged information from these apex deponents. The plaintiffs’ counsel has earlier represented that he wanted to question these apex executives on the “so-called executive summaries which are generally used in these kinds of cases in order to inform the board of directors, as to why the corporation would plead guilty.” This would likely be a privileged document.
Accordingly, the banks request a telephonic conference on December 8, 2017 to resolve this dispute or that the Notices are quashed without the need for a telephonic conference.
