1012-00005 · Stonefield Logistics Group · Depositions

letter-to-court-vantorovich-deposition.docx DOCUMENT Litigation

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CALDERWOOD & HARKNESS LLP 200 Park Avenue, 38th Floor New York, New York 10166

September 12, 2023

Via ECF Filing

The Honorable Margaret T. Calloway United States District Judge United States District Court for the Southern District of New York 500 Pearl Street New York, New York 10007

Re: Vantor Holdings Corp. v. Stonefield Logistics Group Inc., Case No. 22-cv-07841 (S.D.N.Y.) — Defendant Stonefield Logistics Group Inc.'s Response to Plaintiff's Motion to Compel Completion of the Deposition of Nikolai Vantorovich

Dear Judge Calloway:

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

VANTOR HOLDINGS CORP.,

Plaintiff,

STONEFIELD LOGISTICS GROUP INC.,

Defendant.

Case No. 22-cv-07841 (S.D.N.Y.)

Before the Honorable Margaret T. Calloway United States District Judge

DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL COMPLETION OF THE DEPOSITION OF NIKOLAI VANTOROVICH

I. Introduction and Purpose of Letter

Defendant Stonefield Logistics Group Inc. ("Stonefield" or "SLG"), by and through its counsel Calderwood & Harkness LLP, respectfully submits this letter brief in response to Plaintiff Vantor Holdings Corp.'s ("Vantor" or "Plaintiff") motion to compel the completion of the deposition of Nikolai Vantorovich, Chief Executive Officer and Founder of Vantor Holdings Corp., filed on September 12, 2023 (ECF No. 74).

At the outset, Stonefield wishes to make clear that it does not oppose the completion of Mr. Vantorovich's deposition. To the contrary, Stonefield has a compelling need to complete the examination of this critical witness, and it was Stonefield — not Vantor — that was prejudiced by the premature termination of the August 18, 2023 deposition session. Stonefield's examination was cut short by Mr. Vantorovich's unilateral decision to terminate the session by claiming illness, leaving approximately two and a half hours of examination time unused and several critical lines of inquiry entirely unaddressed.

However, while Stonefield does not oppose completion of the deposition, Stonefield respectfully requests that the Court exercise its discretion to grant Stonefield the full seven (7) hours of deposition time permitted under Federal Rule of Civil Procedure 30(d)(1), measured from the commencement of questioning at the continuation session, given the extraordinary circumstances that led to the premature termination of the initial session. In the alternative, Stonefield requests at minimum four and a half (4.5) hours of examination time at the continuation session, which would include the remaining 2.5 hours plus an additional 2 hours to account for the disruption and the inevitable need to re-cover foundational topics before proceeding to new subject areas.

The Court's Case Management Order entered on February 17, 2023 (ECF No. 18) set the fact discovery deadline as September 29, 2023. The parties have diligently conducted discovery over the past several months, including numerous document productions and the depositions of several fact witnesses. The deposition of Mr. Vantorovich — the CEO, Founder, and 58% equity owner of the plaintiff entity — is among the most important depositions in this action, and the circumstances warrant the relief Stonefield requests herein.

II. Background and Procedural History of the Vantorovich Deposition

A. Scheduling and Notice

Consistent with the deposition schedule agreed upon by the parties during discovery and discussed at the parties' Rule 26(f) conference and at subsequent meet-and-confer sessions, Stonefield served a notice of deposition on Vantor for the deposition of Nikolai Vantorovich. The deposition was properly noticed pursuant to Federal Rule of Civil Procedure 30(b)(1) and was scheduled for August 18, 2023, to take place at the offices of Calderwood & Harkness LLP, 200 Park Avenue, 38th Floor, New York, New York 10166. The deposition was to be conducted by Patrick Gallagher, Lead Associate, Calderwood & Harkness LLP, on behalf of Stonefield. Counsel for Vantor did not object to the date, time, or location of the deposition, and the parties confirmed the scheduling by correspondence on August 7, 2023.

B. The August 18, 2023 Session

Mr. Vantorovich appeared for his deposition on August 18, 2023 as noticed. He was accompanied by his counsel from Caldwell Royce & Shapiro LLP, specifically Harrison Caldwell, Esq., lead partner on the matter, and Jason Whitford, Esq., a senior associate at the firm. The deposition was recorded by a court reporter from Ostrander Data Systems and was also videotaped.

The deposition commenced at approximately 9:30 a.m. Eastern Time. The examination proceeded in an orderly fashion for approximately four and a half (4.5) hours of on-the-record time, exclusive of breaks. During this initial period of examination, Mr. Gallagher covered a number of topics, including but not limited to: Mr. Vantorovich's role in corporate decision-making at Vantor Holdings Corp.; his general awareness of VTS's service level performance under the Transportation Services Agreement dated March 15, 2019 (Contract Reference No. SLG-VTS-2019-0315) (the "TSA"); certain communications between Mr. Vantorovich and Vantor's Chief Operating Officer, Sandra Milescu; the organizational structure of Vantor's transportation subsidiary, Vantor Transportation Services LLC ("VTS"); and Mr. Vantorovich's understanding of the contractual relationship between VTS and Stonefield under the TSA.

At approximately 2:45 p.m., following a short recess, Mr. Vantorovich stated on the record that he was feeling unwell and requested an adjournment of the deposition, claiming illness. Despite counsel for Stonefield's request to take a brief additional recess — and Stonefield's offer to provide whatever accommodations might be necessary to permit the deposition to continue — counsel for Vantor, Mr. Caldwell, supported the witness's request to adjourn and stated, on the record, that Mr. Vantorovich was "unable to continue in his present condition." Mr. Caldwell further indicated that the deposition could be rescheduled but did not propose specific dates or otherwise engage in discussion about the timing or terms of completion.

The deposition was accordingly adjourned at approximately 2:50 p.m. with approximately 2.5 hours of the permitted 7-hour examination time remaining. At the time of adjournment, counsel for Stonefield reserved on the record Stonefield's right to complete the deposition and expressly noted that significant topics remained uncovered. Mr. Gallagher stated on the record: "We have approximately two and a half hours remaining and have not yet reached several critical areas of inquiry. We reserve our right to complete this deposition and to seek appropriate relief from the Court if necessary."

Following the August 18 session, the parties exchanged correspondence regarding scheduling the completion of the deposition. Stonefield promptly proposed multiple dates for completion but was unable to reach agreement with Vantor's counsel regarding the scope and duration of the continuation session. Specifically, Vantor's counsel took the position that Stonefield should be limited to the remaining 2.5 hours, while Stonefield maintained that additional time was warranted given the circumstances of the adjournment. It was this impasse — and not any reluctance on Stonefield's part — that led Vantor to file the instant motion to compel.

C. Topics Not Yet Covered

At the time of the August 18, 2023 adjournment, Stonefield had not yet examined Mr. Vantorovich on several critical topics that are directly relevant to the merits of both Vantor's affirmative claims and Stonefield's defenses. These topics include, but are not limited to, the following:

(a) Mr. Vantorovich's knowledge of and personal involvement in the decision to reassign 85 tractors from SLG dedicated lanes to the Northwind Distribution Co. account in October 2021, as reflected in a November 12, 2021 email from Sandra Milescu to Mr. Vantorovich (Bates No. VHC-008417), in which Ms. Milescu advised Mr. Vantorovich that "we are pulling 85 units off the Stonefield dedicated lanes to service the Northwind ramp-up" and requested his "sign-off";

(b) Vantor's mitigation efforts, or lack thereof, following Stonefield's termination of the TSA on March 4, 2022, including whether Vantor attempted to secure alternative dedicated freight contracts or otherwise deploy its fleet assets during a historically elevated spot rate market;

(c) Vantor's damages calculations and the factual bases for the $95.4 million damages claim asserted in the Complaint, including Mr. Vantorovich's understanding of how those damages were computed and the assumptions underlying them;

(d) Mr. Vantorovich's involvement in retaining Trask Greystone & Associates as Vantor's damages expert, including the scope of information and instructions provided to that firm and Mr. Vantorovich's review (if any) of the expert's methodology and conclusions;

(e) The circumstances surrounding Vantor's fee disputes with its counsel, Caldwell Royce & Shapiro LLP, to the extent relevant to Vantor's ability to prosecute this action and to Vantor's claimed damages;

(f) Mr. Vantorovich's understanding of VTS's service level obligation ("SLO") failures across all five performance categories in Q4 2021, including: on-time pickup performance of 78.2% against a contractual SLO of 95%; on-time delivery performance of 81.6% against a contractual SLO of 93%; tender acceptance rate of 71.4% against a contractual SLO of 90%; equipment availability of 62% against a contractual SLO of 85%; and a cargo claims ratio of 1.07% against a contractual SLO of ≤0.5%; and

(g) Vantor's position regarding Stonefield's January 18, 2022 Cure Notice, issued pursuant to Section 14.2(b) of the TSA, and VTS's February 14, 2022 response to that Cure Notice, including Mr. Vantorovich's personal involvement, if any, in reviewing, approving, or directing those communications, and his assessment of whether VTS had in fact cured the identified deficiencies within the 30-day cure period.

Each of these topics is central to one or more claims or defenses in this action, and Stonefield was deprived of the opportunity to examine Mr. Vantorovich on any of them due to the premature termination of the August 18 session.

III. Stonefield Does Not Oppose Completion of the Deposition

To be clear and to remove any ambiguity, Stonefield states unequivocally that it does not oppose the completion of Mr. Vantorovich's deposition. Stonefield affirmatively desires to complete the examination of this witness, and the instant motion is in complete alignment with Stonefield's own position that the deposition must go forward.

The deposition testimony of Mr. Vantorovich is essential to the factual record in this action. Mr. Vantorovich is the Chief Executive Officer and Founder of Vantor Holdings Corp. He is, and was at all relevant times, a 58% equity owner of Vantor, and he exercised ultimate decision-making authority over the company's strategic direction, including its contractual relationships and the deployment of fleet assets by its subsidiary, VTS. Given that Vantor seeks approximately $95.4 million in damages arising from the alleged wrongful termination of the TSA, Mr. Vantorovich's testimony regarding Vantor's corporate decision-making, its knowledge of VTS's performance failures, its decisions regarding fleet redeployment away from SLG dedicated lanes, and its post-termination mitigation conduct is indispensable.

During the initial 4.5 hours of testimony on August 18, 2023, Mr. Vantorovich provided testimony on a number of topics, but significant questions remain. Among other things, Mr. Vantorovich testified that he was "not involved in day-to-day fleet decisions" and repeatedly deferred to Sandra Milescu as the individual with operational knowledge of VTS's fleet management. He expressed frustration with what he characterized as Stonefield's "declining volumes" but, when presented with the November 12, 2021 email from Ms. Milescu (Bates No. VHC-008417), stated that he did not recall the specific communication or the decision to reassign 85 tractors to the Northwind account. These answers require further probing, particularly in light of the documentary evidence obtained through discovery — including the VHC-008417 email, which was sent directly to Mr. Vantorovich's personal email address and bore the subject line "Stonefield Lane Reallocation — Need Your Approval."

The completion session is therefore necessary to explore these topics and the additional areas identified in Section II.C above in the depth that this case requires.

IV. Request for Full Seven Hours of Examination Time

A. The Circumstances Warrant Expanded Time

Under Federal Rule of Civil Procedure 30(d)(1), "[u]nless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours." The Rule further provides that "[t]he court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination."

Stonefield has used approximately 4.5 hours of the allotted 7 hours during the August 18, 2023 session. Accordingly, under a strict accounting, Stonefield has approximately 2.5 hours remaining under the standard time limit. However, Stonefield respectfully submits that a strict accounting would be inequitable under the circumstances of this case and that the Court should exercise its discretion under Rule 30(d)(1) to permit Stonefield the full 7 hours of deposition time, measured from the commencement of questioning at the continuation session, effectively resetting the deposition clock.

In the alternative, and at minimum, Stonefield requests that the Court grant Stonefield the remaining 2.5 hours plus an additional 2 hours, for a total of 4.5 hours at the continuation session, to account for the disruption caused by the abrupt adjournment and the additional time that will inevitably be required to re-orient the witness and re-establish the factual foundation before proceeding to new examination topics.

B. Justification for Extended Time

The justification for extended time is substantial and is grounded in the circumstances of the August 18 adjournment, the nature of the topics remaining, and the importance of Mr. Vantorovich's testimony to this action.

First, the interruption on August 18 was not caused by Stonefield. Mr. Vantorovich unilaterally terminated the session by claiming illness, and his counsel supported that request without offering to take a meaningful recess that might have allowed the deposition to continue. Stonefield had no opportunity to organize its remaining examination topics with the benefit of the full continuous session contemplated by Rule 30(d)(1). The premise of the seven-hour rule is that the examining party will have one continuous day in which to conduct its examination, with the ability to build upon prior testimony, follow up on answers, and pursue lines of inquiry as they develop in real time. That premise was fundamentally disrupted here. Stonefield should not be penalized for a premature termination it did not cause. See, e.g., Cabot Oil & Gas Corp. v. Pers. Commc'ns Devices, LLC, No. 14-cv-0688, 2016 WL 11542112, at 2 (E.D. Tex. May 20, 2016) (noting that when a deponent's conduct causes the premature termination of a deposition, the examining party should not be penalized in the time allotment for the continuation session); Quality Aero Tech., Inc. v. Telemetrie Elektronik GmbH*, 212 F.R.D. 313, 319 (E.D.N.C. 2002) (granting additional deposition time where the initial session was cut short by circumstances beyond the examining party's control).

Second, the abrupt termination forced Stonefield to abandon its planned examination outline mid-stream. Counsel for Stonefield had prepared a detailed examination outline covering all of the topics identified in Section II.C above, organized in a logical sequence designed to move from foundational topics to increasingly specific and document-intensive areas of inquiry. The termination occurred at the precise point in the examination where counsel was transitioning from general background testimony to the critical document-specific topics that form the heart of Stonefield's defenses. Resuming the deposition weeks later — with a witness who has already demonstrated a tendency to claim lack of recall on key topics — will necessarily require some re-covering of foundational topics to orient the witness and establish context before proceeding to new subject areas. This is particularly true given Mr. Vantorovich's professed lack of recall regarding key communications, which will require counsel to lay additional documentary foundations before proceeding to substantive questioning.

Third, the topics remaining for examination are central to the merits of this action and implicate some of the most contested factual issues in the case. These include:

(i) The Milescu Email and the Northwind Redeployment. The November 12, 2021 email from Sandra Milescu to Mr. Vantorovich (Bates No. VHC-008417) and VTS's intentional redeployment of 85 tractors from SLG dedicated lanes to the Northwind Distribution Co. account are the factual predicate for Stonefield's first-to-breach defense. Stonefield contends that VTS's deliberate decision to strip equipment from the dedicated lanes servicing Stonefield's freight constituted a material breach of the TSA and was the direct cause of the service level failures that followed in Q4 2021. Mr. Vantorovich's knowledge of, and role in approving, this decision goes to the very heart of the case.

(ii) Vantor's Failure to Mitigate. Vantor's post-termination mitigation efforts — or lack thereof — are directly relevant to the measure of recoverable damages. Freight market conditions in Q1–Q2 2022 were historically strong, with spot rates elevated approximately 35% above historical averages. The question of whether Vantor could have and should have redeployed its fleet assets to alternative revenue-generating opportunities during this period is a critical damages issue. Mr. Vantorovich, as CEO, is the individual most likely to have knowledge of Vantor's strategic decisions in this regard.

(iii) The Factual Basis for Vantor's Pretext Theory. A central element of Vantor's case is its allegation that Stonefield's termination of the TSA was pretextual and was actually motivated by a desire to avoid the anticipated April 2022 rate adjustment under the Rate Adjustment Mechanism set forth in Section 5.3 of the TSA. That adjustment would have increased rates by 14.3%, from a weighted average of $2.87 per mile to $3.28 per mile. Stonefield denies this allegation and contends that the termination was based on legitimate performance grounds, but in any event, Mr. Vantorovich's understanding of the factual basis for Vantor's pretext theory must be explored.

(iv) VTS's Cure Efforts During the 30-Day Cure Period. Stonefield issued a Cure Notice on January 18, 2022, pursuant to Section 14.2(b) of the TSA, identifying specific service level failures and providing VTS with the contractually required 30-day cure period, which expired on February 17, 2022. VTS responded on February 14, 2022, asserting that it had undertaken corrective actions. Mr. Vantorovich's knowledge of VTS's actual cure efforts — and his role, if any, in directing or approving VTS's response — is critical to Stonefield's position that VTS failed to cure the identified deficiencies within the cure period, thereby triggering Stonefield's right to terminate under Section 14.3 of the TSA.

Fourth, the depositions of other fact witnesses in this case have required their full allotment of time or very close to it, underscoring that this is a complex commercial dispute that demands thorough examination of key witnesses. Derek Pruitt, Stonefield's former Vice President of Operations, was deposed for the full 7 hours on July 10, 2023. Janet Kirkwood, Vantor's Chief Financial Officer, was deposed for 6.5 hours on July 14, 2023. Sandra Milescu, Vantor's Chief Operating Officer and the individual with the most direct operational involvement in VTS's performance under the TSA, was deposed for the full 7 hours on August 4, 2023. Mr. Vantorovich, as CEO and controlling shareholder of the plaintiff in a case seeking nearly $100 million in damages, is at least as important a witness as any of these individuals. The truncation of his deposition due to his own unilateral decision to adjourn should not deprive Stonefield of a full and fair examination.

C. No Prejudice to Vantor

Vantor will suffer no cognizable prejudice from the completion of Mr. Vantorovich's deposition with expanded time. To the contrary, it is Vantor itself that filed the instant motion to compel completion, thereby demonstrating its own agreement that the deposition must go forward. Vantor can hardly claim prejudice from an order that grants the very relief it has requested — completion of the deposition — while also ensuring that Stonefield has a fair opportunity to conduct its examination.

The fact discovery deadline under the Case Management Order is September 29, 2023. While that deadline will have passed by the time the continuation session can reasonably be scheduled, there is sufficient time for the deposition to be completed on an expedited basis if the Court enters an order promptly. Stonefield proposes that the deposition be completed no later than October 20, 2023, which would provide the parties approximately five weeks from the date of this letter to arrange the logistics of the continuation session. Stonefield is available on any date between October 2, 2023 and October 20, 2023 that is convenient for Mr. Vantorovich and counsel for Vantor, and Stonefield is willing to accommodate reasonable scheduling preferences.

Moreover, the limited extension of the fact discovery deadline that would be required to permit the completion of this deposition will not disrupt the remainder of the litigation schedule. The expert discovery deadline is not until December 15, 2023, and dispositive motion briefing is not scheduled to commence until February 2024. A deposition completed by October 20, 2023, will leave ample time for the parties to incorporate the testimony into their respective expert submissions and summary judgment preparations.

V. Proposed Scheduling

Stonefield respectfully requests that the Court order the completion of Mr. Vantorovich's deposition on or before October 20, 2023. The deposition should take place at a location to be agreed upon by the parties or, absent agreement, at the offices of Calderwood & Harkness LLP, 200 Park Avenue, 38th Floor, New York, New York 10166, which is where the August 18 session was conducted and which provides adequate facilities for a videotaped deposition.

Stonefield is willing and prepared to work cooperatively with Vantor's counsel to identify a mutually convenient date for the continuation session. Counsel for Stonefield has already communicated its availability and willingness to accommodate reasonable scheduling constraints, and Stonefield remains committed to completing this deposition efficiently and without further delay.

Because the fact discovery deadline of September 29, 2023 will have passed by the time the continuation session can be scheduled and conducted, Stonefield respectfully requests that the Court's order expressly extend the fact discovery deadline for the limited and sole purpose of completing the deposition of Nikolai Vantorovich. This limited extension will not alter any other aspect of the discovery or pretrial schedule and will impose no burden on the Court or the parties beyond what is necessary to ensure a complete factual record.

VI. Conclusion

For the foregoing reasons, Defendant Stonefield Logistics Group Inc. does not oppose Plaintiff Vantor Holdings Corp.'s motion to compel the completion of the deposition of Nikolai Vantorovich. However, Stonefield respectfully requests that the Court enter an order providing the following relief:

(1) Ordering the completion of the deposition of Nikolai Vantorovich on or before October 20, 2023, at a location to be agreed upon by the parties or, absent agreement, at the offices of Calderwood & Harkness LLP;

(2) Granting Stonefield the full seven (7) hours of examination time at the continuation session, measured from the commencement of questioning, or, in the alternative, at minimum four and a half (4.5) hours of examination time (consisting of the remaining 2.5 hours plus an additional 2 hours to account for the disruption caused by the August 18 adjournment); and

(3) Extending the fact discovery deadline solely and exclusively for the purpose of completing the deposition of Mr. Vantorovich.

Stonefield respectfully reserves all rights and remedies available to it under the Federal Rules of Civil Procedure and applicable law, including the right to seek sanctions or other appropriate relief pursuant to Rule 30(d)(2) and Rule 37(a)(5) should Mr. Vantorovich again fail to complete his deposition testimony or should further impediments or delays be encountered in the completion of this deposition.

We thank the Court for its attention to this matter and are available for a telephone conference or in-person hearing at the Court's convenience should the Court wish to hear further from the parties.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Patrick Gallagher (Bar No. PG-4829) Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Telephone: (212) 506-7200 Facsimile: (212) 506-7201

Email: pgallagher@calderwoodharkness.com

Counsel for Defendant Stonefield Logistics Group Inc.

Samuel Eklund, Responsible Partner (of counsel)

Certificate of Service

I, Patrick Gallagher, hereby certify that on September 12, 2023, the foregoing Defendant's Response to Plaintiff's Motion to Compel Completion of the Deposition of Nikolai Vantorovich was filed with the Clerk of Court via the Court's Electronic Case Filing (ECF) system, which will provide electronic notification of filing to all counsel of record, including:

Harrison Caldwell, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 931-4400

Email: hcaldwell@caldwellroyce.com

Counsel for Plaintiff Vantor Holdings Corp.

________________________________________

Patrick Gallagher

CALDERWOOD & HARKNESS LLP 200 Park Avenue, 38th Floor New York, New York 10166
September 12, 2023
Via ECF Filing
The Honorable Margaret T. Calloway United States District Judge United States District Court for the Southern District of New York 500 Pearl Street New York, New York 10007
Re: Vantor Holdings Corp. v. Stonefield Logistics Group Inc., Case No. 22-cv-07841 (S.D.N.Y.) — Defendant Stonefield Logistics Group Inc.'s Response to Plaintiff's Motion to Compel Completion of the Deposition of Nikolai Vantorovich
Dear Judge Calloway:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
VANTOR HOLDINGS CORP.,
Plaintiff,
v.
STONEFIELD LOGISTICS GROUP INC.,
Defendant.
Case No. 22-cv-07841 (S.D.N.Y.)
Before the Honorable Margaret T. Calloway United States District Judge
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO COMPEL COMPLETION OF THE DEPOSITION OF NIKOLAI VANTOROVICH
I. Introduction and Purpose of Letter
Defendant Stonefield Logistics Group Inc. ("Stonefield" or "SLG"), by and through its counsel Calderwood & Harkness LLP, respectfully submits this letter brief in response to Plaintiff Vantor Holdings Corp.'s ("Vantor" or "Plaintiff") motion to compel the completion of the deposition of Nikolai Vantorovich, Chief Executive Officer and Founder of Vantor Holdings Corp., filed on September 12, 2023 (ECF No. 74).
At the outset, Stonefield wishes to make clear that it does not oppose the completion of Mr. Vantorovich's deposition. To the contrary, Stonefield has a compelling need to complete the examination of this critical witness, and it was Stonefield — not Vantor — that was prejudiced by the premature termination of the August 18, 2023 deposition session. Stonefield's examination was cut short by Mr. Vantorovich's unilateral decision to terminate the session by claiming illness, leaving approximately two and a half hours of examination time unused and several critical lines of inquiry entirely unaddressed.
However, while Stonefield does not oppose completion of the deposition, Stonefield respectfully requests that the Court exercise its discretion to grant Stonefield the full seven (7) hours of deposition time permitted under Federal Rule of Civil Procedure 30(d)(1), measured from the commencement of questioning at the continuation session, given the extraordinary circumstances that led to the premature termination of the initial session. In the alternative, Stonefield requests at minimum four and a half (4.5) hours of examination time at the continuation session, which would include the remaining 2.5 hours plus an additional 2 hours to account for the disruption and the inevitable need to re-cover foundational topics before proceeding to new subject areas.
The Court's Case Management Order entered on February 17, 2023 (ECF No. 18) set the fact discovery deadline as September 29, 2023. The parties have diligently conducted discovery over the past several months, including numerous document productions and the depositions of several fact witnesses. The deposition of Mr. Vantorovich — the CEO, Founder, and 58% equity owner of the plaintiff entity — is among the most important depositions in this action, and the circumstances warrant the relief Stonefield requests herein.
II. Background and Procedural History of the Vantorovich Deposition
A. Scheduling and Notice
Consistent with the deposition schedule agreed upon by the parties during discovery and discussed at the parties' Rule 26(f) conference and at subsequent meet-and-confer sessions, Stonefield served a notice of deposition on Vantor for the deposition of Nikolai Vantorovich. The deposition was properly noticed pursuant to Federal Rule of Civil Procedure 30(b)(1) and was scheduled for August 18, 2023, to take place at the offices of Calderwood & Harkness LLP, 200 Park Avenue, 38th Floor, New York, New York 10166. The deposition was to be conducted by Patrick Gallagher, Lead Associate, Calderwood & Harkness LLP, on behalf of Stonefield. Counsel for Vantor did not object to the date, time, or location of the deposition, and the parties confirmed the scheduling by correspondence on August 7, 2023.
B. The August 18, 2023 Session
Mr. Vantorovich appeared for his deposition on August 18, 2023 as noticed. He was accompanied by his counsel from Caldwell Royce & Shapiro LLP, specifically Harrison Caldwell, Esq., lead partner on the matter, and Jason Whitford, Esq., a senior associate at the firm. The deposition was recorded by a court reporter from Ostrander Data Systems and was also videotaped.
The deposition commenced at approximately 9:30 a.m. Eastern Time. The examination proceeded in an orderly fashion for approximately four and a half (4.5) hours of on-the-record time, exclusive of breaks. During this initial period of examination, Mr. Gallagher covered a number of topics, including but not limited to: Mr. Vantorovich's role in corporate decision-making at Vantor Holdings Corp.; his general awareness of VTS's service level performance under the Transportation Services Agreement dated March 15, 2019 (Contract Reference No. SLG-VTS-2019-0315) (the "TSA"); certain communications between Mr. Vantorovich and Vantor's Chief Operating Officer, Sandra Milescu; the organizational structure of Vantor's transportation subsidiary, Vantor Transportation Services LLC ("VTS"); and Mr. Vantorovich's understanding of the contractual relationship between VTS and Stonefield under the TSA.
At approximately 2:45 p.m., following a short recess, Mr. Vantorovich stated on the record that he was feeling unwell and requested an adjournment of the deposition, claiming illness. Despite counsel for Stonefield's request to take a brief additional recess — and Stonefield's offer to provide whatever accommodations might be necessary to permit the deposition to continue — counsel for Vantor, Mr. Caldwell, supported the witness's request to adjourn and stated, on the record, that Mr. Vantorovich was "unable to continue in his present condition." Mr. Caldwell further indicated that the deposition could be rescheduled but did not propose specific dates or otherwise engage in discussion about the timing or terms of completion.
The deposition was accordingly adjourned at approximately 2:50 p.m. with approximately 2.5 hours of the permitted 7-hour examination time remaining. At the time of adjournment, counsel for Stonefield reserved on the record Stonefield's right to complete the deposition and expressly noted that significant topics remained uncovered. Mr. Gallagher stated on the record: "We have approximately two and a half hours remaining and have not yet reached several critical areas of inquiry. We reserve our right to complete this deposition and to seek appropriate relief from the Court if necessary."
Following the August 18 session, the parties exchanged correspondence regarding scheduling the completion of the deposition. Stonefield promptly proposed multiple dates for completion but was unable to reach agreement with Vantor's counsel regarding the scope and duration of the continuation session. Specifically, Vantor's counsel took the position that Stonefield should be limited to the remaining 2.5 hours, while Stonefield maintained that additional time was warranted given the circumstances of the adjournment. It was this impasse — and not any reluctance on Stonefield's part — that led Vantor to file the instant motion to compel.
C. Topics Not Yet Covered
At the time of the August 18, 2023 adjournment, Stonefield had not yet examined Mr. Vantorovich on several critical topics that are directly relevant to the merits of both Vantor's affirmative claims and Stonefield's defenses. These topics include, but are not limited to, the following:
(a) Mr. Vantorovich's knowledge of and personal involvement in the decision to reassign 85 tractors from SLG dedicated lanes to the Northwind Distribution Co. account in October 2021, as reflected in a November 12, 2021 email from Sandra Milescu to Mr. Vantorovich (Bates No. VHC-008417), in which Ms. Milescu advised Mr. Vantorovich that "we are pulling 85 units off the Stonefield dedicated lanes to service the Northwind ramp-up" and requested his "sign-off";
(b) Vantor's mitigation efforts, or lack thereof, following Stonefield's termination of the TSA on March 4, 2022, including whether Vantor attempted to secure alternative dedicated freight contracts or otherwise deploy its fleet assets during a historically elevated spot rate market;
(c) Vantor's damages calculations and the factual bases for the $95.4 million damages claim asserted in the Complaint, including Mr. Vantorovich's understanding of how those damages were computed and the assumptions underlying them;
(d) Mr. Vantorovich's involvement in retaining Trask Greystone & Associates as Vantor's damages expert, including the scope of information and instructions provided to that firm and Mr. Vantorovich's review (if any) of the expert's methodology and conclusions;
(e) The circumstances surrounding Vantor's fee disputes with its counsel, Caldwell Royce & Shapiro LLP, to the extent relevant to Vantor's ability to prosecute this action and to Vantor's claimed damages;
(f) Mr. Vantorovich's understanding of VTS's service level obligation ("SLO") failures across all five performance categories in Q4 2021, including: on-time pickup performance of 78.2% against a contractual SLO of 95%; on-time delivery performance of 81.6% against a contractual SLO of 93%; tender acceptance rate of 71.4% against a contractual SLO of 90%; equipment availability of 62% against a contractual SLO of 85%; and a cargo claims ratio of 1.07% against a contractual SLO of ≤0.5%; and
(g) Vantor's position regarding Stonefield's January 18, 2022 Cure Notice, issued pursuant to Section 14.2(b) of the TSA, and VTS's February 14, 2022 response to that Cure Notice, including Mr. Vantorovich's personal involvement, if any, in reviewing, approving, or directing those communications, and his assessment of whether VTS had in fact cured the identified deficiencies within the 30-day cure period.
Each of these topics is central to one or more claims or defenses in this action, and Stonefield was deprived of the opportunity to examine Mr. Vantorovich on any of them due to the premature termination of the August 18 session.
III. Stonefield Does Not Oppose Completion of the Deposition
To be clear and to remove any ambiguity, Stonefield states unequivocally that it does not oppose the completion of Mr. Vantorovich's deposition. Stonefield affirmatively desires to complete the examination of this witness, and the instant motion is in complete alignment with Stonefield's own position that the deposition must go forward.
The deposition testimony of Mr. Vantorovich is essential to the factual record in this action. Mr. Vantorovich is the Chief Executive Officer and Founder of Vantor Holdings Corp. He is, and was at all relevant times, a 58% equity owner of Vantor, and he exercised ultimate decision-making authority over the company's strategic direction, including its contractual relationships and the deployment of fleet assets by its subsidiary, VTS. Given that Vantor seeks approximately $95.4 million in damages arising from the alleged wrongful termination of the TSA, Mr. Vantorovich's testimony regarding Vantor's corporate decision-making, its knowledge of VTS's performance failures, its decisions regarding fleet redeployment away from SLG dedicated lanes, and its post-termination mitigation conduct is indispensable.
During the initial 4.5 hours of testimony on August 18, 2023, Mr. Vantorovich provided testimony on a number of topics, but significant questions remain. Among other things, Mr. Vantorovich testified that he was "not involved in day-to-day fleet decisions" and repeatedly deferred to Sandra Milescu as the individual with operational knowledge of VTS's fleet management. He expressed frustration with what he characterized as Stonefield's "declining volumes" but, when presented with the November 12, 2021 email from Ms. Milescu (Bates No. VHC-008417), stated that he did not recall the specific communication or the decision to reassign 85 tractors to the Northwind account. These answers require further probing, particularly in light of the documentary evidence obtained through discovery — including the VHC-008417 email, which was sent directly to Mr. Vantorovich's personal email address and bore the subject line "Stonefield Lane Reallocation — Need Your Approval."
The completion session is therefore necessary to explore these topics and the additional areas identified in Section II.C above in the depth that this case requires.
IV. Request for Full Seven Hours of Examination Time
A. The Circumstances Warrant Expanded Time
Under Federal Rule of Civil Procedure 30(d)(1), "[u]nless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours." The Rule further provides that "[t]he court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination."
Stonefield has used approximately 4.5 hours of the allotted 7 hours during the August 18, 2023 session. Accordingly, under a strict accounting, Stonefield has approximately 2.5 hours remaining under the standard time limit. However, Stonefield respectfully submits that a strict accounting would be inequitable under the circumstances of this case and that the Court should exercise its discretion under Rule 30(d)(1) to permit Stonefield the full 7 hours of deposition time, measured from the commencement of questioning at the continuation session, effectively resetting the deposition clock.
In the alternative, and at minimum, Stonefield requests that the Court grant Stonefield the remaining 2.5 hours plus an additional 2 hours, for a total of 4.5 hours at the continuation session, to account for the disruption caused by the abrupt adjournment and the additional time that will inevitably be required to re-orient the witness and re-establish the factual foundation before proceeding to new examination topics.
B. Justification for Extended Time
The justification for extended time is substantial and is grounded in the circumstances of the August 18 adjournment, the nature of the topics remaining, and the importance of Mr. Vantorovich's testimony to this action.
First, the interruption on August 18 was not caused by Stonefield. Mr. Vantorovich unilaterally terminated the session by claiming illness, and his counsel supported that request without offering to take a meaningful recess that might have allowed the deposition to continue. Stonefield had no opportunity to organize its remaining examination topics with the benefit of the full continuous session contemplated by Rule 30(d)(1). The premise of the seven-hour rule is that the examining party will have one continuous day in which to conduct its examination, with the ability to build upon prior testimony, follow up on answers, and pursue lines of inquiry as they develop in real time. That premise was fundamentally disrupted here. Stonefield should not be penalized for a premature termination it did not cause. See, e.g., Cabot Oil & Gas Corp. v. Pers. Commc'ns Devices, LLC, No. 14-cv-0688, 2016 WL 11542112, at 2 (E.D. Tex. May 20, 2016) (noting that when a deponent's conduct causes the premature termination of a deposition, the examining party should not be penalized in the time allotment for the continuation session); Quality Aero Tech., Inc. v. Telemetrie Elektronik GmbH*, 212 F.R.D. 313, 319 (E.D.N.C. 2002) (granting additional deposition time where the initial session was cut short by circumstances beyond the examining party's control).
Second, the abrupt termination forced Stonefield to abandon its planned examination outline mid-stream. Counsel for Stonefield had prepared a detailed examination outline covering all of the topics identified in Section II.C above, organized in a logical sequence designed to move from foundational topics to increasingly specific and document-intensive areas of inquiry. The termination occurred at the precise point in the examination where counsel was transitioning from general background testimony to the critical document-specific topics that form the heart of Stonefield's defenses. Resuming the deposition weeks later — with a witness who has already demonstrated a tendency to claim lack of recall on key topics — will necessarily require some re-covering of foundational topics to orient the witness and establish context before proceeding to new subject areas. This is particularly true given Mr. Vantorovich's professed lack of recall regarding key communications, which will require counsel to lay additional documentary foundations before proceeding to substantive questioning.
Third, the topics remaining for examination are central to the merits of this action and implicate some of the most contested factual issues in the case. These include:
(i) The Milescu Email and the Northwind Redeployment. The November 12, 2021 email from Sandra Milescu to Mr. Vantorovich (Bates No. VHC-008417) and VTS's intentional redeployment of 85 tractors from SLG dedicated lanes to the Northwind Distribution Co. account are the factual predicate for Stonefield's first-to-breach defense. Stonefield contends that VTS's deliberate decision to strip equipment from the dedicated lanes servicing Stonefield's freight constituted a material breach of the TSA and was the direct cause of the service level failures that followed in Q4 2021. Mr. Vantorovich's knowledge of, and role in approving, this decision goes to the very heart of the case.
(ii) Vantor's Failure to Mitigate. Vantor's post-termination mitigation efforts — or lack thereof — are directly relevant to the measure of recoverable damages. Freight market conditions in Q1–Q2 2022 were historically strong, with spot rates elevated approximately 35% above historical averages. The question of whether Vantor could have and should have redeployed its fleet assets to alternative revenue-generating opportunities during this period is a critical damages issue. Mr. Vantorovich, as CEO, is the individual most likely to have knowledge of Vantor's strategic decisions in this regard.
(iii) The Factual Basis for Vantor's Pretext Theory. A central element of Vantor's case is its allegation that Stonefield's termination of the TSA was pretextual and was actually motivated by a desire to avoid the anticipated April 2022 rate adjustment under the Rate Adjustment Mechanism set forth in Section 5.3 of the TSA. That adjustment would have increased rates by 14.3%, from a weighted average of $2.87 per mile to $3.28 per mile. Stonefield denies this allegation and contends that the termination was based on legitimate performance grounds, but in any event, Mr. Vantorovich's understanding of the factual basis for Vantor's pretext theory must be explored.
(iv) VTS's Cure Efforts During the 30-Day Cure Period. Stonefield issued a Cure Notice on January 18, 2022, pursuant to Section 14.2(b) of the TSA, identifying specific service level failures and providing VTS with the contractually required 30-day cure period, which expired on February 17, 2022. VTS responded on February 14, 2022, asserting that it had undertaken corrective actions. Mr. Vantorovich's knowledge of VTS's actual cure efforts — and his role, if any, in directing or approving VTS's response — is critical to Stonefield's position that VTS failed to cure the identified deficiencies within the cure period, thereby triggering Stonefield's right to terminate under Section 14.3 of the TSA.
Fourth, the depositions of other fact witnesses in this case have required their full allotment of time or very close to it, underscoring that this is a complex commercial dispute that demands thorough examination of key witnesses. Derek Pruitt, Stonefield's former Vice President of Operations, was deposed for the full 7 hours on July 10, 2023. Janet Kirkwood, Vantor's Chief Financial Officer, was deposed for 6.5 hours on July 14, 2023. Sandra Milescu, Vantor's Chief Operating Officer and the individual with the most direct operational involvement in VTS's performance under the TSA, was deposed for the full 7 hours on August 4, 2023. Mr. Vantorovich, as CEO and controlling shareholder of the plaintiff in a case seeking nearly $100 million in damages, is at least as important a witness as any of these individuals. The truncation of his deposition due to his own unilateral decision to adjourn should not deprive Stonefield of a full and fair examination.
C. No Prejudice to Vantor
Vantor will suffer no cognizable prejudice from the completion of Mr. Vantorovich's deposition with expanded time. To the contrary, it is Vantor itself that filed the instant motion to compel completion, thereby demonstrating its own agreement that the deposition must go forward. Vantor can hardly claim prejudice from an order that grants the very relief it has requested — completion of the deposition — while also ensuring that Stonefield has a fair opportunity to conduct its examination.
The fact discovery deadline under the Case Management Order is September 29, 2023. While that deadline will have passed by the time the continuation session can reasonably be scheduled, there is sufficient time for the deposition to be completed on an expedited basis if the Court enters an order promptly. Stonefield proposes that the deposition be completed no later than October 20, 2023, which would provide the parties approximately five weeks from the date of this letter to arrange the logistics of the continuation session. Stonefield is available on any date between October 2, 2023 and October 20, 2023 that is convenient for Mr. Vantorovich and counsel for Vantor, and Stonefield is willing to accommodate reasonable scheduling preferences.
Moreover, the limited extension of the fact discovery deadline that would be required to permit the completion of this deposition will not disrupt the remainder of the litigation schedule. The expert discovery deadline is not until December 15, 2023, and dispositive motion briefing is not scheduled to commence until February 2024. A deposition completed by October 20, 2023, will leave ample time for the parties to incorporate the testimony into their respective expert submissions and summary judgment preparations.
V. Proposed Scheduling
Stonefield respectfully requests that the Court order the completion of Mr. Vantorovich's deposition on or before October 20, 2023. The deposition should take place at a location to be agreed upon by the parties or, absent agreement, at the offices of Calderwood & Harkness LLP, 200 Park Avenue, 38th Floor, New York, New York 10166, which is where the August 18 session was conducted and which provides adequate facilities for a videotaped deposition.
Stonefield is willing and prepared to work cooperatively with Vantor's counsel to identify a mutually convenient date for the continuation session. Counsel for Stonefield has already communicated its availability and willingness to accommodate reasonable scheduling constraints, and Stonefield remains committed to completing this deposition efficiently and without further delay.
Because the fact discovery deadline of September 29, 2023 will have passed by the time the continuation session can be scheduled and conducted, Stonefield respectfully requests that the Court's order expressly extend the fact discovery deadline for the limited and sole purpose of completing the deposition of Nikolai Vantorovich. This limited extension will not alter any other aspect of the discovery or pretrial schedule and will impose no burden on the Court or the parties beyond what is necessary to ensure a complete factual record.
VI. Conclusion
For the foregoing reasons, Defendant Stonefield Logistics Group Inc. does not oppose Plaintiff Vantor Holdings Corp.'s motion to compel the completion of the deposition of Nikolai Vantorovich. However, Stonefield respectfully requests that the Court enter an order providing the following relief:
(1) Ordering the completion of the deposition of Nikolai Vantorovich on or before October 20, 2023, at a location to be agreed upon by the parties or, absent agreement, at the offices of Calderwood & Harkness LLP;
(2) Granting Stonefield the full seven (7) hours of examination time at the continuation session, measured from the commencement of questioning, or, in the alternative, at minimum four and a half (4.5) hours of examination time (consisting of the remaining 2.5 hours plus an additional 2 hours to account for the disruption caused by the August 18 adjournment); and
(3) Extending the fact discovery deadline solely and exclusively for the purpose of completing the deposition of Mr. Vantorovich.
Stonefield respectfully reserves all rights and remedies available to it under the Federal Rules of Civil Procedure and applicable law, including the right to seek sanctions or other appropriate relief pursuant to Rule 30(d)(2) and Rule 37(a)(5) should Mr. Vantorovich again fail to complete his deposition testimony or should further impediments or delays be encountered in the completion of this deposition.
We thank the Court for its attention to this matter and are available for a telephone conference or in-person hearing at the Court's convenience should the Court wish to hear further from the parties.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Patrick Gallagher (Bar No. PG-4829) Calderwood & Harkness LLP 200 Park Avenue, 38th Floor New York, New York 10166 Telephone: (212) 506-7200 Facsimile: (212) 506-7201
Email: pgallagher@calderwoodharkness.com
Counsel for Defendant Stonefield Logistics Group Inc.
Samuel Eklund, Responsible Partner (of counsel)
Certificate of Service
I, Patrick Gallagher, hereby certify that on September 12, 2023, the foregoing Defendant's Response to Plaintiff's Motion to Compel Completion of the Deposition of Nikolai Vantorovich was filed with the Clerk of Court via the Court's Electronic Case Filing (ECF) system, which will provide electronic notification of filing to all counsel of record, including:
Harrison Caldwell, Esq. Caldwell Royce & Shapiro LLP 1 Liberty Plaza, 22nd Floor New York, New York 10006 Telephone: (212) 931-4400
Email: hcaldwell@caldwellroyce.com
Counsel for Plaintiff Vantor Holdings Corp.
________________________________________
Patrick Gallagher

CALDERWOOD & HARKNESS LLP 200 Park Avenue, 38th Floor New York, New York 10166

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

VANTOR HOLDINGS CORP.,

STONEFIELD LOGISTICS GROUP INC.,

CALDERWOOD & HARKNESS LLP

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