District Judge Sarah Netburn


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Defendants moved for summary judgment, and plaintiffs cross-moved to strike 3 declarations submitted in support of defendants’ summary judgment motion. Burstein’s declaration referred to a spreadsheet containing a record of all sales of Energy Conversion Devices, Inc.’s convertible notes and common stock with or through Credit Suisse during plaintiffs’ proposed class period. Burstein attested that each purchase and sale of ECD stock with or through Credit Suisse would show on the spreadsheet. In support of their motion, plaintiffs argued that Burstein was never disclosed as a fact witness and that her declaration was not based on her personal knowledge and failed to explain how she knew of the spreadsheet and its completeness. The court granted plaintiffs’ motion to strike the declaration of Deborah Burstein, director and counsel, and Credit Suisse Securities (USA) LLC, but declined to strike the remaining two declarations. The court rejected plaintiffs’ assertion that Burstein should have been disclosed as a fact witness, finding that she was not an individual likely to have discoverable information. However, the court agreed that Burstein’s declaration failed to sufficiently state the basis of her knowledge of the data in the spreadsheet.