6340 NB LLC v. Capital One, N.A.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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6340 NB LLC,

Plaintiff,

MEMORANDUM ORDER

-against- 20-CV-02500 (OEM) (JMW)

CAPITAL ONE, N.A.,

Defendant.

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A P P E A R A N C E S:

Ronald J. Rosenberg

John S. Ciulla

Joshua Marc Liebman

Kenneth E. Aneser

Peter Williams

William J. Birney

Rosenberg Calica & Birney LLP

100 Garden City Plaza, Suite 408

Garden City, NY 11530

For Plaintiff 6340 NB LLC

Adam Kirschbaum

James Wilson Perkins

Greenberg Traurig, P.A

One Vanderbilt Avenue

New York, NY 10017

For Defendant Capital One, N.A.

Michelle D. Gambino

David Glenn Barger

Michael Hass

Shirin Afsous

Greenberg Traurig

1750 Tysons Blvd., Suite 1000

McLean, VA 22102

WICKS, Magistrate Judge:

Two remaining discovery motions are before the Court at this juncture, with both parties

adamantine in their respective positions. Discovery kerfuffle’s have permeated this case, with

each side engaging in linguistic fisticuffs for quite some time over a handlist of issues (see, e.g.,

ECF Nos. 94, 101, 112, 118, 121, 123 (appeal), 133, 143 (affirmance), 150, 158, 159, 169, 172,

174; Electronic Order dated Nov. 14, 2022). This latest round of motion practice should serve as

the coda to discovery, as the final cut-off date is December 18, 2023 (see Electronic Order dated

Sept. 12, 2023).1

First up is Plaintiff 6340’s (“6340 NB”) motion to conduct an in-camera review and

compel Defendant Capital One, N.A.’s (“Capital One”) to produce documents relating to the

decision to terminate the Ground Lease which are currently marked “confidential” and

considered privileged. (ECF Nos. 159; 176.) In turn, Capital One has also filed a motion to

compel 6340 NB to produce communications related to the following: the aftermath of the Town

of Hempstead’s refusal to rezone; 6340 NB’s receipt of the Termination Notice; and 6340 NB’s

refusal to move forward with the lease once Capital One rescinded its termination notice. (ECF

Nos. 169; 177.) Each side opposes the respective motion. (ECF Nos. 165; 173.) For the reasons

that follow, 6340 NB’s motion for an in-camera review is denied, as is Capital One’s motion to

compel 6340 NB to produce certain documents.2

1 Discovery deadlines in this case have been extended several times.

2 The original motions were denied without prejudice to renew based upon the parties’ desire (at that

time) to have a settlement conference. (ECF No. 174.) The undersigned held a settlement conference on

September 12, 2023 (see Electronic Order dated Sept. 12, 2023), but was not fruitful. Accordingly, the

parties were afforded the opportunity to renew their respective motions which are currently pending

before the Court.

RELEVANT BACKGROUND

The Court and the parties are well versed in the underlying facts and allegations of this

case from prior orders which need not be repeated here. (See ECF No. 101.)

Germane here is that pursuant to a 2017 Ground Lease and its subsequent amendments,

6340 NB was to acquire and rezone two residential parcels in order to construct a Capital One

bank branch (the “Property”). (ECF No. 42 at ¶¶ 14-22.) In order to obtain zoning approval,

6340 NB required Capital One’s cooperation to provide certain plans and specifications for the

anticipated branch. (Id. at ¶ 18.) After several extensions of deadlines, which 6340 NB alleges

is at the hands of Capital One, on July 24, 2019, 6340 NB finally filed the requisite zoning

application. (Id. at ¶¶ 26-28.) A public hearing was held before the Town Board of the Town of

North Hempstead on December 17, 2019. (Id.) Capital One contends that the Town would not

agree to the rezoning (see ECF No. 94), but 6340 NB alleges progress was made during the

hearing and the Town was generally supportive. (See ECF No. 42 at ¶ 28.) Nonetheless, just

over a month later, on January 31, 2020, Capital One served a Termination Notice of the Ground

Lease for 6340 NB’s failure to timely perform its obligations under the Ground lease

(“Termination Notice). (Id. at ¶ 31.) 6340 NB contends that this Termination Notice was

wrongful and an act of anticipatory repudiation because 6340 NB was well within the deadlines

set in an amendment to the Ground Lease. (Id. at ¶ 33.)

In an effort to keep the deal alive, 6340 NB asked Capital One to withdraw the

Termination Notice, and in an email to Capital One’s counsel, stated: “We are ready willing and

able to proceed but to do so require that Capital One withdraw the termination.” (Id. at ¶ 38.)

Capital One did not withdraw the Termination notice and thus 6340 NB commenced this action

to recover damages based on Capital One’s alleged breach of contract and anticipatory

repudiation of a Ground Lease and its subsequent amendments. (See ECF No. 42.) Capital One

has counterclaimed against 6340 NB alleging fraud and breach of contract in connection with

6340 NB’s alleged failure to perform under the Ground Lease. (See ECF No. 89.)

LEGAL STANDARD FOR MOTIONS TO COMPEL GENERALLY

Pursuant to Fed. R. Civ. P. 26:

Parties may obtain discovery regarding any nonprivileged matter that is relevant

to any party’s claim or defense and proportional to the needs of the case,

considering the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’

resources, the importance of the discovery in resolving the issues, and whether the

burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1).

Information “is relevant if: ‘(a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in determining the

action.’” Vaigasi v. Solow Mgmt. Corp., No. 11-CV-5088, 2016 WL 616386, at *11 (S.D.N.Y.

Feb. 16, 2016) (quoting Fed. R. Evid. 401). Moreover, “[t]he party seeking the discovery must

make a prima facie showing that the discovery sought is more than merely a fishing expedition.”

Evans v. Calise, No. 92-CV-8430, 1994 WL 185696, at *1 (S.D.N.Y. May 12, 1994); see also

Mandell v. The Maxon Co., Inc., No. 06-CV-460, 2007 WL 3022552, at *1 (S.D.N.Y. Oct. 16,

2007) (“[T]he party seeking discovery bears the burden of initially showing relevance.”). To that

end, the discovery sought by the parties must be, as stated by Rule 26, proportional to the needs

of the case, taking into consideration such aspects as the importance of the issues, the amount in

controversy, the parties’ resources and access to the information sought, and the importance of

the information sought to the asserted claims or defenses. Sibley v. Choice Hotels Int’l, No. 14-

CV-634 (JS)(AYS), 2015 WL 9413101, at *2-3 (E.D.N.Y. Dec. 22, 2015).

Since December of 2015, “Rule 26 has defined the scope of discovery to consist of

information that is relevant to the parties’ ‘claims and defenses.’” Pothen v. Stony Brook Univ.,

No. 13-CV-6170 (JFB) (AYS), 2017 WL 1025856, at *2 (E.D.N.Y. Mar. 15, 2017). “Thus, the

discretionary authority to allow discovery of ‘any matter relevant to the subject matter involved

in the action’ has been eliminated,” and permissible discovery under Rule 26 must be relevant

“to any party’s claim or defense,” and that means “proportional to the needs of the case.” Id. at

*3 (citing Fed. R. Civ. P. 26(b)(1)). Proportionality goes “hand-in-hand” with relevance. New

Falls Corp. v. Soni, No. 16-CV-6805 (ADS) (AKT), 2020 WL 2836787, at *2 (E.D.N.Y. May

29, 2020). That is, the more relevant the information sought is, the less likely the Court would

find the subject discovery disproportionate. Id.

It is beyond peradventure that “[m]otions to compel are left to the court’s sound

discretion.” Mirra v. Jordan, No. 13-CV-5519, 2016 WL 889683, at *2 (S.D.N.Y. Feb. 23,

2016); see also Liberty Mut. Ins. Co. v. Kohler Co., No. 08-CV-867, 2010 WL 1930270, at *2

(E.D.N.Y. May 11, 2010) (“[A] motion to compel is entrusted to the sound discretion of the

district court.”). It is with these guideposts in mind that the Court considers the present motions.

DISCUSSION

I. 6340 NB’s Motion for In Camera Review and to Compel Documents (ECF No.

159)

6340 NB is requesting an in camera review of and to compel Capital One to produce the

74 documents3 listed on pages 2–4 of Exhibit 17, or at a minimum, the 12 documents that

Capital One admits are between non-lawyers. (ECF No. 159.) 6340 NB previously requested

the same relief on September 9, 2022, and was denied without prejudice because it was

3 6340 NB states that 50 of these documents are so heavily redacted that nothing can be gleaned from

them and 24 of them are being withheld based on privilege.

premature. (See ECF No. 101 at 10.) 6340 NB now renews its motion because it claims Capital

One is playing a “shell game” to hide information regarding the decision and rationale to

terminate the lease. (ECF No. 159 at 1.) 6340 NB provides numerous examples of Capital

One’s alleged shell game:

(1) On December 21, 2022, the court ordered Capital One to produce documents relating

to the bank-café. 6340 NB alleges that two weeks later, Capital One purposely moved

to reconsider that order, and at the same time tried to get back certain already

produced documents claiming that they were privileged. Only after 6340 NB moved

to preclude Capital One from attempting to get the documents back did Capital One

acquiesce.

(2) On February 15, 2023, 6340 NB deposed Ethan Wingfield, a Capital One executive.

He testified that he was not involved in the decision to send the Termination Notice.

6340 NB alleges either he lied during the deposition or Capital One’s response to

6340 NB’s interrogatory No. 5, confirming Wingfield was involved in the decision,

was false. (See ECF No. 160-11 at 5) (Wingfield Deposition Transcript) (“I was not

involved in the decision to send the Termination Notice. So I’ve never seen this

document before.”).

(3) A week before the deposition, Capital One made certain communications between

Mr. Wingfield and David Ross available, communications that Capital One had

maintained were privileged. In other words, 6340 NB alleges Capital One

strategically withheld the documents only to use them to question Wingfield at the

deposition later.

(4) On February 21, 2023, at around 11 P.M., Capital One removed both Wingfield and

Michael Bott from interrogatory No. 5 as individuals involved with the decision to

send the Termination Notice. This was 11 hours before 6340 NB’s planned

deposition of Bott. (ECF No. 160-15 at 5-6) (Bott Deposition Transcript) (Q: “With

respect to your name being one of the people identified as being involved in the

decision to terminate the ground lease, was that an accurate correct statement?” A:

“That is not.”; A: “I was not involved in that decision.”). Yet 6340 NB alleges that

Capital One’s privilege log shows that Bott received at least 10 privileged email

communications concerning the decision to terminate the Ground Lease.

(5) Gilley Mattingly was also identified as a decision-maker but testified that she was not

involved. (ECF No. 160-17 at 3) (Mattingly Deposition Transcript) (Q: “Would you

consider yourself to be someone who was involved in the decision to terminate the

ground lease with 6340 NB?” A: “No.”).

(6) Gregory Bryant, a 30(b)(6) witness, was unable to answer basic questions about the

termination. (ECF No 160-18 at 7-8.)

(7) Lastly, Capital One claims it only considered terminating the agreement after the

rezoning hearing on January 22, 2020. But 6340 NB says that Capital One’s privilege

log shows related communications three months before the rezoning hearing. Thus,

Capital One continues to withhold documents it alleges are privileged or work

product that relate to termination of the agreement but 12 of them do not involve

counsel.

(ECF No. 159 at 1-3.)

Capital One argues that it was never asked to disclose all parties involved in the decision

to terminate; it was only asked to disclose those involved with the decision to send the notice.4

(ECF No. 165.) Thus, in response, Capital One Capital One argues that it named five individuals

that it believed to be involved in the decision to send the notice, and that changed over time and

Capital One realized Bott and Wingfield actually were not involved in the sending of the notice

to terminate. (Id. at 1-2.) When Bryant disclosed he did not know who was involved in the

notice decision, 6340 NB did not state that the testimony was insufficient in any way. (Id. at 2.)

And 6340 NB deposed other witnesses for hours on this topic as well. (Id.) In addition, it has

produced over 1,000 documents to 6340 NB’s overly broad request related to the possibility of

building a café near a mall. (Id. at 3.)

Capital One avers that it turned over every non-privileged document, and its privilege log

adequately explains why other documents are privileged. (Id.) And 6340 NB could not

articulate why reviewing the documents was not sufficient. In essence, the documents are

privileged because: they relate to discussions with Capital One’s in-house counsel; legal advice

sought or context of the advice; concern in-house or outside counsel’s work product. (Id. at 4.)

Courts faced with making determinations about documents being withheld based on

privilege regularly perform in camera reviews of the subject documents. See Shinnecock Indian

4 The notice was sent because 6340 NB failed to get the rezoning accomplished and did not timely

perform.

Nation v. Kempthorne, 652 F. Supp. 2d 345, 351 (E.D.N.Y. 2009) (“[T]he Court ruled … in its

discretion and in an abundance of caution, that the two documents be submitted under seal for in

camera inspection.”); Burbar v. Inc. Vill. of Garden City, 303 F.R.D. 9, 11 (E.D.N.Y. 2014)

(noting that prior to issuing an order on plaintiff’s motion to compel defendants to produce

certain documents that defendants claimed to be protected by the deliberative process and work

product privileges, the court directed defendants to submit the documents for an in camera

review); Conte v. County of Nassau, No. 06-CV-4746 (JFB) (ETB), 2009 WL 1362784, at *4

(E.D.N.Y. May 5, 2009) (“[W]hen a court is not able to resolve to its own satisfaction an

agency’s determination to withhold documents, it may . . . conduct an in camera review.”) (citing

ACLU v. DOD, 389 F. Supp. 2d 547, 567 (S.D.N.Y. 2005)).

Nonetheless, the decision whether to even engage in an in-camera review rests within the

district court’s sound discretion. Linde v. Arab Bank, PLC, 608 F. Supp. 2d 351, 361 (E.D.N.Y.

Feb. 25, 2009). “A lesser evidentiary showing is needed to trigger in camera review than is

required ultimately to overcome the privilege.” United States v. Zolin, 491 U.S. 554, 572 (1989).

“The party invoking the [attorney-client] privilege bears the burden of ‘establish[ing]

those facts that are the essential elements of the privileged relationship….” Chevron Corp. v.

Salazar, 275 F.R.D. 437, 444 (S.D.N.Y. 2011). 5 To be sure, “[t]he fact that a document is sent

or received between attorney and client does not make it privileged unless it contains

confidential communications relating to legal advice.” Bell v. Pfizer, Inc., No. 03-CV-9945

(KMW) (HBP), 2006 U.S. Dist. LEXIS 62611, at *13 (S.D.N.Y. Aug. 31, 2006) (citing

Grossman v. Schwarz, 125 F.R.D. 376, 387 (S.D.N.Y. 1989)); Bruno v. Equifax Info. Servs.,

5 The attorney-client privilege exists where the claimant has shown: (1) a communication between

counsel and client; (2) the communication was intended to be and was indeed kept confidential; and (3)

the communication was made for give or receive legal advice. See Ceglia v. Zuckerberg, No. 10-CV-

00569A(F), 2012 U.S. Dist. LEXIS 55367, at *5 (W.D.N.Y. Apr. 19, 2012).

LLC, No. 17-cv-327 (WBS) (EFB), 2019 U.S. Dist. LEXIS 24502, at *16-17 (E.D. Cal. Feb. 14,

2019) (“Counsel’s mere inclusion among the recipients of the initial emails is not sufficient to

afford protection under attorney-client privilege.”) Thus, an in camera review would ensure that

there is a “bona fide request for legal advice and not a subterfuge to evade discovery

obligations.” Valassis Communs., Inc., No. 17-cv-7378 (PKC), 2018 U.S. Dist. LEXIS 160234,

at *8 (S.D.N.Y. Sept. 19, 2018).

In deciding whether to conduct the in-camera review, the Court will examine the non-

movant’s privilege log to determine whether privilege has been sufficiently identified. “[T]he

[privilege] log must provide[ ] information about the nature of the withheld documents sufficient

to enable the receiving party to make an intelligent determination about the validity of the

assertion of the privilege.” Gunning v. New York State Just. Ctr. for Prot. of People With Special

Needs, No. 19-CV-1446 (GLS) (CFH), 2022 WL 783226, at *6 (N.D.N.Y. Mar. 15, 2022);

Export-Import Bank of the United States v. Asia Pulp & Paper Co., Ltd., 232 F.R.D. 103, 111

(S.D.N.Y. 2005) (“At the very least, the party claiming the attorney-client privilege must give

evidence that the document was created for the purpose of providing or obtaining legal rather

than business advice.”).

This Court is guided by Local Civil Rule 26.2, which requires that parties include the

following in their privilege logs: the type of document; the general subject matter of the

document; the date of the document; author of the document; addressees of the document; and

the relationship of the author/addresses to one another. See Local Civil Rule 26.2(a)(2)(A).

Here, the Court declines to engage in an in-camera review for several reasons. First,

Capital One has complied with the Local Rules in providing an adequate privilege log: it states

the description of the privilege as well as the author and addressees of such document. Cf.

Edebali v. Bankers Std. Ins. Co., No. 14-CV-7095 (JS) (AKT), 2017 U.S. Dist. LEXIS 110665,

at *23 (E.D.N.Y. July 17, 2017) (finding no supporting documentation submitted for the broad

privilege assertion and requiring defendant to produce a privilege log to determine if there is a

plausible claim of privilege); Ceglia, at *7-9 (finding no privilege where plaintiff’s privilege log

merely stated that the communication discussed “a hushmail account”). According to Capital

One’s privilege log, all communications occurred between company employees and counsel

regarding the agreement negotiations, agreement terms, termination, costs and design of the

premises, decisions to open a branch, or the zoning process. (ECF Nos. 160-13; 160-16.) This is

further evidenced by Mark Graybeal’s, former in-house counsel of Capital One, affidavit which

stated that he provided legal advice in many of the communications:

Although these communications do not copy me or any lawyers in my group, these

communications were the direct result of my instructions to collect the info described

above, including my providing the reasons why the info, in order to render legal advice to

Capital One, which I was able to do as a result of these communications.

(ECF No. 165-11 at 5.)

In short, there is nothing raised on the face of the privilege log itself giving rise to any

question of the applicability of a privilege.

Second, conducting an in-camera review would be a mere fishing expedition and would

not yield any further information than 6340 NB already possesses. 6340 NB requested

information related to the decision to terminate the Ground Lease prior to the Termination Notice

being sent; communications related to the decision not to operate a retail branch; and

communications regarding the Termination Notice. (ECF No. 159-1.) It spent hours deposing

several Capital One employees (Gregory Bryant, a corporate representative; Andrew

MacDougall, the primary decisionmaker for the Termination Notice; and Ethan Wingfield, a

Capital One Vice President) about these issues, yet seeks to take a second bite at the apple in

filing this motion for an in camera review. (See ECF No. 165 at 2) (“6340 [NB] also took six

depositions of witnesses possessing relevant facts and asked every single witness about the

Terminate Notice and the reasons for it.”) 6340 NB has not made a sufficient evidentiary

showing of the need to justify in camera review under the circumstances. As such, this Court

declines 6340 NB’s invitation to do so. See In re Omnicom Group Inc., Sec. Litig., 233 F.R.D.

400, 410 n.7 (S.D.N.Y. 2007) (declining to engage in an in-camera review where movants did

not make a “sufficiently compelling evidentiary case to trigger such review” and the documents

would not answer open questions before the court)’ Weber v. Paduano, No. 02-cv-3392 (GEL),

2003 U.S. Dist. LEXIS 858, at *40 (S.D.N.Y. Jan. 14, 2003) (“When faced with claims of

privilege, courts often undertake in camera review in order to supplement the parties' privilege

logs and determine the content of the documents. However, in camera review of the documents,

while potentially helpful to the determination of privilege, is not … to be routinely undertaken …

as a substitute for a party’s submission of an adequate record for its privilege claims, especially

where, as here, the Court would have to examine a large quantity of documents.”). Undertaking

an in camera review should not be taken lightly. For in reviewing for privilege, the Court is

given unfettered access to privileged communications between attorney and client. In order to

justify such a review, the movant must make an evidentiary showing that there is some basis to

suspect the communications withheld are in fact not privileged. That showing is absent here.

Relatedly, it has been indicated in at least one deposition that the decision to terminate

the Ground Lease was based upon 6340 NB failure to obtain the zoning: “Yeah, so Andrew

[MacDougall] reviewed information that was provided to him that clearly indicated that, you

know, from a timeliness perspective the landlord did not meet commitments and the biggest

issue, to be quite honest, John, is we didn’t think we could get the rezoning done, that the

landlord could get the rezoning done.· And because of that we needed to move on.· And so that's

what drove the termination decision.” (ECF No. 159-16 at 9) (Bryant Deposition Transcript).

Therefore, the reasoning behind terminating the Ground Lease has been explored.

For the foregoing reasons, the Court declines to conduct an in-camera review of the

documents.

II. Capital One’s Motion to Compel (ECF No. 169)

Capital One seeks an order requiring 6340 NB to account for and produce

communications related to three “critical events”: (1) the aftermath of the Town of Hempstead’s

declining to rezone the property; (2) 6340 NB’s receipt of the Termination Notice; and (3) 6340

NB’s refusal to move forward with the Ground Lease after Capital One rescinded the

Termination Notice. (ECF No. 169 at 1.) It also requests that the Court order 6340 NB to detail

the documents it claims to be privileged, rather than provide a categorical log so that Capital One

and the Court may fully assess the privilege claim and to perform an additional search for and

produce responsive documents. (Id. at 3.) In short, Capital One does not believe, and argues it is

not credible, that only two emails between Dave Ross and Richard Becker (6340 NB’s

principals) exist for this period. (Id.) 6340 NB indeed has admitted it has relevant documents

but refuses to produce them claiming privilege without otherwise explaining how they are

privileged. (ECF No. 177.)

Capital One makes two arguments. First, Capital One argues that Ross and Becker are

cousins that live on opposite ends of the country and they communicated daily about the deal

through email. For example, from the signing of the Ground Lease (2017) to the rezoning

hearing (January 22, 2020), Capital One notes that Ross and Becker exchanged over 1,000

emails concerning the deal. (Id. at 2.) Thus, the likelihood that they randomly stopped

communicating about the deal after the rezoning was denied is very slim. And discussions on

the business decision on what to do with the Capital One project are discoverable and are not

privileged. (Id.) Second, Capital One argues that the emails could not be privileged because

6340 NB’s privilege log only has approximately 100 total documents. (Id.) And its zoning

counsel’s privilege log only indicates a “few” communications after the rezoning hearing. (Id.)

Capital One says the communications are relevant because they bear on 6340 NB’s obligation to

mitigate damages since 6430 NB could have avoided injury post-termination of the Ground

Lease. (Id. at 3.)

In response, 6340 NB makes two arguments. (ECF No. 173.) First, 6340 NB argues that

it produced eight (not just two) non-privileged emails covering February 3 to February 19, 2020

which show that Becker and Ross requested Capital One to rescind the notice so 6340 NB could

go forward with the rezoning. (ECF No. 173 at 2); (see ECF No. 173-4.) It further postures that

Capital One is notorious for abusing discovery. (ECF No. 173 at 2). Second, 6340 NB argues

that the Stipulation Order only required categorical logs and requiring it to produce a detailed log

is improper. (Id. at 3.) And Capital One has not provided support to show that the

communications are wrongly labeled as privileged. (Id. at 4.) In sum, 6340 NB believes Capital

One’s motion is only meant to divert the Court’s attention from 6340 NB’s motion. It requests

the Court deny the motion to compel, and order Capital One to pay expenses including attorney’s

fees incurred to oppose the motion under FRCP 37(a)(5)(B).6 (Id.)

6 In its supplemental papers, 6340 NB also states that the cases cited by Capital One are distinguishable in

that they involve circumstances in which the movant presented support demonstrating the existence of

additional documents in the non-movant’s possession that were being withheld from production. (ECF No.

179.) However, here, there is no such evidence demonstrating that documents are being withheld. (Id.)

Capital One responds stating that 6340 NB’s response (ECF No. 179) is a sur-reply, which is not allowed

by the undersigned’s rules. (ECF No. 181.) It further states that it cannot prove that the documents exist

nor how the materials are not privileged because 6340 NB’s counsel has yet to explain why the documents

are privileged as this is their burden, not Capital One’s. (Id.). However, 6340 NB states that it did not file

an improper sur-reply but rather was just responding to the cases cited by Capital One. (ECF No. 182.)

Here, 6340 NB has sufficiently asserted privilege. Like Capital One for its opposition to

6340 NB’s motion (ECF No. 165), Kevin M. Walsh Esq.’s and 6340 NB’s privilege logs comply

with the Local Rules. See Local Civil Rule 26.2(2)(A). The Walsh and 6340 NB privilege logs

detail how the documents are privileged. For example, in Walsh’s privilege log (ECF No. 169-

2), it schedules out the time, document type, sender/receiver, who is copied, subject, description,

and type of privilege asserted. Of the 66 documents in this log, Walsh alleges that the document

is protected by the attorney/client privilege based on “confidential communications between

[Becker/Walsh/Ross/Halpern/Schaefer/Beck/Pearsall] for the purposes of legal advice and

counsel.” (See id.) To be sure, though not dispositive, all of these communications include at

least one attorney—Kevin M. Walsh, Esq; Laura Schaefer, Esq.; Katrine A. Beck, Esq.; or

Leonard Halpern, Esq. In addition, the 6430 NB privilege log contains similar descriptions:

• Confidential communications between counsel and representatives of 6340 NB providing

legal advice and requesting information in connection with representation regarding

negotiations with Capital One for ground lease involving 245 and 249 Old Country Road,

Carle Place, NY;

• Confidential communications between counsel and representatives of 6340 NB providing

legal advice and requesting information in connection with representation involving

development and zoning issues pertaining to proposed Capital One Bank branch;

• Confidential communications between counsel and representatives of 6340 NB providing

legal advice and requesting information in connection with representation pertaining to

matters involving contract with owner of 10 Byrd Avenue, Carle Place, NY;

• Confidential communications between counsel and representatives of 6340 NB providing

legal advice and requesting information in connection with representation pertaining to

Further, it states that Capital One has the burden to show that the documents fail to comply with the privilege

log in accordance with Local Rule 26.2(c). (Id.) To the extent that the parties wish to have the Court

consider the slew of supplemental documents in response to Capital One’s supplemental brief, the Court

declines to do so. See AA Medical v. Almansoori, No. 20-cv-3852 (DG) (JMW), 2023 WL 4073772

(E.D.N.Y. June 19, 2023) (declining to consider Plaintiff’s sur-reply as the Court had not given him prior

permission to do so after the motion was fully submitted).

matters involving contracts with owners of Properties to be Acquired in connection with

Ground Lease;

• Confidential communications between counsel and representatives of 6340 NB providing

legal advice and requesting information in connection with representation involving lease

with tenant, Scuba Freedom Inc. at 245 Old Country Road, Carle Place, NY; and

• Confidential communications between litigation counsel, zoning counsel and 6340 NB

representatives regarding information requested by counsel and/or reflecting legal advice

given by counsel and preparing material in anticipation of litigation in connection with

representation involving Capital One’s wrongful termination of Ground Lease.

(ECF No. 169-3.) Notably absent from Capital One’s motion to compel is any indication that

6340 NB’s log fails to comply with the Local Rules or that there is an improper assertion of

privilege. Without any evidence that 6340 NB is withholding relevant documents or otherwise

nefariously invoking claims of privilege, Capital One has no basis to compel 6340 NB to detail

the documents it claims to be privileged.

Capital One requests that 6340 NB be required to provide further detail to its privilege

log to assess the privilege claims. However, critically, and perhaps even fatal to Capital One’s

claims, is the fact that the parties agreed to exchange categorical privilege logs. (ECF No. 173 at

3) (“Pursuant to Section VIII of the parties’ so-ordered, Stipulation dated September 21, 2021

(the “Stipulation and Order” (see ECF Doc. No. 54, p. 13)), the parties agreed, inter alia, to

exchange categorical privilege logs in compliance with Local Rule 26.2(c).”) It would be unfair

for 6340 NB to now have to supplement its statements based on Capital One’s mere assumptions.

Further, courts in this Circuit have found that categorical logs are indeed acceptable and

appropriate under certain circumstances. See, e.g., In re Actos Antitrust Litig., 340 F.R.D. 549,

553 (S.D.N.Y. 2022) (“Categorical privilege logs are appropriately used in this Court.”); Rekor

Sys. v. Loughlin, No. 19-CV-07767 (LJL), 2021 WL 5450366, at *1 (S.D.N.Y. Nov. 22, 2021)

(“[A] categorical privilege log is adequate if it provides information about the nature of the

withheld documents sufficient to enable the receiving party to make an intelligent determination

about the validity of the assertion of the privilege.”); Auto. Club of N.Y., Inc. v. Port Auth. of N.Y.

& N.J., 297 F.R.D. 55, 59 (S.D.N.Y. 2013) (noting that the EDNY and SDNY local civil rules

“authorize[] the use of a categorical privilege log”).

In this same vein, Capital One cites to a series of cases for the proposition that 6340 NB

has not stated why the documents between Ross and Becker have not been produced on these

critical events. (ECF No. 177.) However, those cases are inapposite because there, the Court

found there was at least some concession or evidence that relevant documents existed. See e.g.

Aristidou v. Aviation Port Servs., LLC, No. 18-CV-4040 (MKB) (RER), 2020 U.S. Dist. LEXIS

31348, at *31-32 (E.D.N.Y. Feb. 21, 2020) (finding that defendants’ response that no other

documents existed “[could] not be taken seriously” considering that executives admitted to

possessing such documents in a deposition); Phoenix Process Equip. Co. v. Capital Equip. &

Trading Corp., No. 16-CV-00024 (CHB), 2021 U.S. Dist. LEXIS 51651, at *26 (W.D. Ky. Mar.

18, 2021) (finding evidence of more documents’ existence and requiring defendant to respond to

the request for production since it was “unbelievable” that the corporations conducting such

large sales would rarely communicate via email and thus there would surely be emails between

the defendants regarding the events at issue); Johnson v. New Destiny Christian Ctr. Church, No.

15-cv-1698-Orl-37GJK, 2017 U.S. Dist. LEXIS 213861, at *18 (M.D. Fla. Aug. 28, 2017)

(finding that defendant’s refusal to produce documents was in bad faith and there must be more

documents in connection to 2014 financial considering the funds received that year). Unlike

those cases, neither 6340 NB nor any of its executives have admitted to having any

communications beyond those already produced or marked as privileged. Indeed, Capital One’s

arguments based on mere speculation here was the same reason why 6340 NB’s prior motion to

compel was denied. See 6340 NB LLC v. Capital One, N.A., No. 20-CV-02500 (JMA)(JMW),

2022 U.S. Dist. LEXIS 163127, at *13 (E.D.N.Y. Sept. 9, 2022) (denying motion to compel

because 6340 NB had no basis to believe there were actually more documents nor did 6340 NB

suggest any communications were wrongly labeled as privileged); see also Scantibodies Lab.,

Inc. v. Church & Dwight Co., No. 14-cv-2275 (JGK) (DF), 2016 U.S. Dist. LEXIS 154396, at

*74 (S.D.N.Y. Nov. 4, 2016) (“Defendant’s mere speculation that such documents exist is an

insufficient basis to compel the production of such documents….”); Universitas Educ., LLC v.

Benistar, No. 20-CV-738 (JAM), 2021 U.S. Dist. LEXIS 255256, at *20 (D. Conn. Dec. 22,

2021) (“It is unclear what other documents the plaintiff is requesting, and moreover, the plaintiff

has not presented any evidence substantiating its belief that additional responsive documents

have been withheld.”).

Accordingly, Capital One’s motion to compel 6340 NB to produce the documents or

otherwise provide further detail to the documents it claims to be privileged is denied.

III. Both Parties’ Request for Fees

Both parties request fees from the opposing party for having to respond to each motion to

compel. (See ECF Nos. 165 and 173.) “It is well established that unless a responding party

shows that its failure to provide requested discovery was substantially justified, the court upon

granting a motion to compel is required to award the prevailing moving party its reasonable

expenses including attorney’s fees incurred in connection with the motion, or unless the award in

the circumstances would be unjust.” Metzgar v. U.A. Plumbers & Steamfitters Local No. 22

Pension Fund, Nos. 13-CV-85V(F), 17-CV-726V(F), 2017 U.S. Dist. LEXIS 171926, at *2

(W.D.N.Y. Oct. 17, 2017) (citing Scott-Iverson v. Independent Health Assoc., Inc., No. 13-CV-

451V(F), 2017 WL 759843, at *2 (W.D.N.Y. Feb. 28, 2017); see also Fed. R. Civ. P.

37(a)(5)(A)(ii). Similarly, if a motion to compel is denied, the court shall not order payment of

reasonable expenses including attorney’s fees if the motion was “substantially justified or other

circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). “Whether a

party was substantially justified in resisting discovery is determined by ‘an objective standard of

reasonableness and does not require that the party have acted in good faith.’” Underdog

Trucking, L.L.C. v. Verizon Servs. Corp., 273 F.R.D. 372, 377 (S.D.N.Y. 2011) (citing Bowne of

New York City, Inc. v. AmBase Corp., 161 F.R.D. 258, 262 (S.D.N.Y. 1995)).

The Court denies awarding fees to either party for several reasons. First, both parties

here vehemently believe that their documents are privileged and not subject to disclosure.

Capital One states that it produced all of the required documents relating to the decision to

terminate and went through a painstaking six-week process to ensure each document was

properly logged. (See ECF No. 165 at 3.) It then provided “substantial justification” for non-

disclosure of the documents by informing 6340 NB which documents would remain privileged

or otherwise redacting the legal content from the documents. (Id.) 6340 NB has also

substantially justified its position stating that it repeatedly told Capital One’s counsel that it

produced all responsive, non-privileged communications already. (ECF No. 173 at 2.)

Second, though a good faith effort is not required, the Court also finds that both parties

made efforts to meet and confer prior to filing their respective motions and thus neither side

should be obligated to pay expenses or fees related to opposing the motion. (See ECF No. 173)

(stating that parties engaged in a “lengthy meet and confer process”); (ECF No. 165 at 6) (noting

that there were “substantial meet-and-confers addressing this matter between the parties”).

Finally, both motions required a similar amount of effort in drafting and opposing and

compiling documents in support of those motions and oppositions. Accordingly, it would be

unjust to award fees to one party without awarding fees to the other. Moreover, each party has

not provided substantive reasons for payment of fees beyond the general statement that the

motion was meritless, so the requesting party deserves reimbursement. For these reasons, both

parties’ request for fees are denied.

CONCLUSION

For the reasons that follow, 6340 NB’s motion for an in camera review is denied (ECF

No. 176) and Capital One’s motion to compel documents is denied (ECF No. 177). Further, both

parties’ request for fees against one another is denied.

Dated: Central Islip, New York

November 16, 2023

S O O R D E R E D:

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge