CASE NO. 2009 20298 CINS3
however, stated that Plaintiff would “produce the witnesses after reasonable exhibits for theirdepositions have been determined.”
Based on this unusual representation that FDLG controlled the witnesses’ depositionattendance and that communications with them were privileged, Defense Counsel asked FDLGwhether it represented the witnesses as their attorney, to which FDLG responded that it did.
When Defense Counsel pointed out that such a relationship would be highly inappropriate and aconflict of interest, FDLG responded “upon further investigation, our firm does not represent theCullaros.” FDLG further asserted it would be withdrawing the affidavit and “[t]herefore, thedeposition will not be necessary.”
FDLG then withdrew its affidavit in
and severalother cases, including this case.
The Defendants maintained, however, that the depositions were still relevant because, if the BANK had knowingly submitted affidavits that were false or unlawfully executed, it couldnot escape the repercussions by simply withdrawing them. With Lisa Cullaro having beenwithdrawn as an expert, Defendants subpoenaed both Cullaros for deposition as fact witnesses toany litigation misconduct surrounding the affidavit.The Cullaro witnesses then retained their own attorney, John J. Cullaro of the CullaroLaw Firm, who filed a Motion for Protective Order on behalf of Cullaros.
Plaintiff's Motion for Protective Order, dated November 12, 2009 in
, ¶ 5.The witnesses arguedthat FDLG had withdrawn the affidavit—not to obviate the deposition—but because it was “no
Email exchange between FDLG and Defense Counsel, November 13, 2009 (Exhibit A).
Email exchange between FDLG and Defense Counsel, November 14 and 17, 2009 (Exhibit A).
Notice of Withdrawal of Affidavit as to Reasonable Attorneys Fees, December 10, 2009.
Motion for Protective Order, dated November 24, 2009.