falsely before taking measures to prevent the presentation of
Plaintiffs rely solely upon Mackler Prods., Inc. v. Turtle Bay
Apparel Corp., No. 92 Civ. 5745, 1997 WL 269505, 1997 U.S. Dist.
LEXIS 7075 (S.D.N.Y. May 21, 1997), vacated on other grounds,
146 F.3d 126 (1998), in support of their contention that Mr.
Lewen's surprise is a sufficient basis upon which to find that he
knew Mr. Blum's testimony was false. See Plaintiffs'
Post-Hearing Submission at 3 n. 1. However, the Mackler court
found that the witness had been instructed by counsel to give
false testimony. Mackler, 1997 WL 269505, *12, 1997 U.S. Dist.
LEXIS 7075, at *14. As the evidence does not support such a
finding here,*fn9 the undersigned finds that plaintiffs'
reliance on Mackler is misplaced.
Even assuming, arguendo, that Mr. Blum willfully offered
false testimony during his December, 1997 deposition, the
undersigned finds that plaintiffs have not shown that Mr. Lewen
knew that Mr. Blum's testimony was false. The requisite "quantum
of proof" which would apply to such a showing has not been
articulated by either the Supreme Court or this Circuit;*fn10
given its finding that Mr. Blum did not willfully offer false
testimony, the undersigned will not endeavor to do so here.
However, it is evident that the quantum of proof is more that the
initial showing which plaintiffs made as a part of their Motion
for Leave to Reopen Discovery to Redepose Stephen Blum and
Conduct Discovery of Matters Raised Therein. In re Sealed Case,
107 F.3d 46, 50 n. 6 (D.C.Cir. 1997) (distinguishing between
showing of a "factual basis adequate to support a good faith
belief by a reasonable person" warranting in camera review, and
"evidence to establish the claim that the crime-fraud exception
applies"); see United States v. Zolin, 491 U.S. 554, 563 n. 7,
109 S.Ct. 2619, 105 L.Ed.2d 469 (1989); In re General Motors
Corp., 153 F.3d 714, 716-717 (8th Cir. 1998); Haines v. Liggett
Group, Inc., 975 F.2d 81, 96 (3rd Cir. 1992); Laser Industries
Ltd. v. Reliant Technologies, Inc., 167 F.R.D. 417, 439-440
Measured by any standard higher than their initial showing,
plaintiffs have failed to prove that Mr. Lewen committed any
fraud on this Court. Instead, the undersigned finds that Mr.
Lewen never directed Mr. Blum to testify falsely; had no
knowledge that any testimony offered by Mr. Blum was false; and
had no reason to believe that Mr. Blum would testify falsely.
ORDERED that Plaintiffs' Motion to Compel Production of
Withheld Documents and Testimony Under the Crime-Fraud Exception
to the Attorney-Client Privilege and Work Product Immunity
Doctrine (Docket No. 117) be, and the same hereby is DENIED.