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

> District Court, E.D. New York · November 16, 2023

URL: https://www.frixlaw.com/law-library/cases/10310875

## Case

- **Court:** District Court, E.D. New York
- **Decided:** November 16, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310875

## How later opinions describe it (automated extraction)

- 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
- noting that the EDNY and SDNY local civil rules “authorize[] the use of a categorical privilege log”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
6340 NB LLC,

Plaintiff,
MEMORANDUM ORDER
-against- 20-CV-02500 (OEM) (JMW)

CAPITAL ONE, N.A.,

Defendant.
-------------------------------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310875. Public record. Not legal advice.