“if plaintiff's direct discovery of the bank and of Williams did not turn up any evidence of such defaults, there is no reason for an excursion through regulatory reports in the hope that something may turn up.”
How later courts described this case
- “if plaintiff's direct discovery of the bank and of Williams did not turn up any evidence of such defaults, there is no reason for an excursion through regulatory reports in the hope that something may turn up.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TWIN BRIDGES WASTE AND RECYCLING,
LLC
Plaintiff,
V. 1:21-CV-0263
(DNH/DJS)
COUNTY WASTE AND RECYCLING SERVICE,
INC, et al.,
Defendants.
APPEARANCES: OF COUNSEL:
DREYER BOYAJIAN, LLP DONALD W. BOYAJIAN, ESQ.
Attorneys for Plaintiff JAMES R. PELUSO, ESQ.
75 Columbia Street LAUREN S. OWENS, ESQ
Albany, New York 12210
BOIES, SCHILLER & FLEXNER LLP ADAM SHAW, ESQ.
Attorneys for Plaintiff
30 South Pearl Street, 11 Floor
Albany, New York 12207
NIXON PEABODY, LLP WILLIAM E. REYNOLDS, ESQ.
Attorneys for Defendants KELLY A. SPRAGUE, ESQ.
677 Broadway, 10“ Floor
Albany, New York 12207
DANIEL J. STEWART
United States Magistrate Judge
DISCOVERY ORDER
On October 16, 2023, after a discovery conference and the issuance of a
Discovery Order (Dkt. No. 110), the Court received materials from Plaintiff's counsel
for an in camera review. Those materials were in response to a discovery demand issued
by County Waste’s counsel and dealt generally with information provided by Twin
Bridges in response to a subpoena issued by the New York State Attorney General’s
Office on July 6, 2023, seeking documents and information relating to Casella Waste
Systems, Inc.’s proposed acquisition of Consolidated Waste Services, LLC and its
subsidiaries. The subpoena was issued by the Attorney General pursuant to General
Business Law § 343, Executive Law § 63(12), and New York Civil Practice Law and
Rules § 2302(a).
The material provided to the Court in connection with this review consisted of
the following:
1. Subpoena Duces Tecum dated July 6, 2023, and issued to Consolidated Waste
Services, LLC. The document is 24 pages in length, inclusive of attachments.
2. Consolidated Waste’s 2-page initial response to the Subpoena, written by
Attorney Wendy Arends of the firm Husch Blackwell, and dated July 14,
2023. The letter references production of 64 responsive documents (Bates ##
CWS01-064). The Letter specifically notes the confidential nature of the
document production in response to a nonpublic inquiry.
3. Consolidated Waste’s second response to the subpoena, by Attorney Arends.
This letter, dated July 21, 2023, is 11 pages in length and references the
additional production of documents (Bates ## CWS065-830). This Letter also
provides specific responses to Request for Information (RFI) ## 1, 4, 6, 7, 9,
and 10, as well as responses for Request for Documents (RFD) ## 1, 9, 10,
12, 13, 14, and 16.
4. Consolidated Waste’s third response dated July 31, 2023. This 9-page Letter
from Attorney Arends responds to RFI ## 2, 3, and 8, as well as RFD 2, 5, 6,
7, 8, and 15. The letter references production of additional documentation
(Bates ## CWS831-1949)
5. Consolidated Waste’s fourth response dated August 8, 2023. This final
response is 4 pages long, and responds to RFI # 5, and FRD # 11. The
response references Bates ## CWS1950-1954.
6. 6-page itemization of Consolidated Waste Services Documents produced in
response to the Attorney General’s Subpoena.
Counsel for Twin Bridges has objected to the production of the materials, citing
the confidential nature of the Office of the Attorney General’s proceedings, as well as
the various privileges which they see as applicable. See Dkt. No. 100. In addition, this
Court raised significant questions about the proportional relevance of this material with
the parties during a conference on October 12, 2023. See generally Dkt. No. 112.
As well understood by the parties to the litigation, see Twin Bridges Waste &
Recycling, LLC v. Cnty. Waste & Recycling Serv., Inc., 2022 WL 5240584, at *2
(N.D.N.Y. Oct. 6, 2022), “[p]arties 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.” FED. R. CIv. P. 26(b)(1). To evaluate what information is discoverable, the
court “consider[s] 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.” /d. District courts have
“broad discretion to manage the scope of discovery and decide motions to compel.
Further, Rule 1 requires that the Federal Rules of Civil Procedure “be construed,
administered, and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.” FED. R. CIv. P. 1; Hyatt v.
Rock, 2016 WL 6820378, at *2 (N.D.N.Y. Nov. 18, 2016).
In the present case, relevancy and expediency drive the Court’s exercise of its
“| discretion. The Court has explained its concern about the status of discovery in this case
in general, and in particular of doing discovery into an independent, and apparently
unfinalized, state investigation regarding the propriety of the proposed sale of the
Plaintiff entities to Casella Waste. Dkt. No. 112 at pp. 5-10. The Attorney General’s
investigation is, in some sense, a different inquiry than what is the focus of the present
matter before the Court. The records sought may overlap or have tangential relevancy
and thus counsel for County Waste reasonably may have some interest in discovering
what legal counsel for the Attorney General’s Office and counsel for Consolidated
Waste Services d/b/a Twin Bridges engaged in during this inquiry. But “Fed. R. Civ. P.
26(b)(1) permits discovery based on a standard of relevance - not supposition or
surmise.” Tradiverse Corp. v. Luzar Trading S.A., 2020 WL 8838055, at *3 (S.D.N.Y.
June 23, 2020) (internal quotation and alteration omitted). Here, there is no showing
that the records and information sought is distinct from or could not be obtained directly
from Twin Bridges in this case, rather than delving into what was asked in a separate
antitrust investigation.
When met with this Court’s skepticism regarding the potential relevance or
propriety of the separate line of inquiry, counsel for the Defendants narrowed down on
what they believed was their biggest concern:
MR. REYNOLDS: Your Honor, I mean it's not so much to replicate the
investigation. It's to find out: What did Scott Earl and Twin Bridges say?
What statements did they make? That's what it's about, statements by
witnesses in this case on antitrust issues. That's what we're trying to get.
So those are highly relevant.... If I don't have a statement, if I don't have
-- if he made a statement to the Attorney General's Office, Your Honor,
and I ask him at a deposition, what did you say to the Attorney General's
Office, but I don't have that statement, how can I cross-examine him? How
can I establish whether he's telling me the truth about what he said to the
Attorney General's Office?
Dkt. No. 112 at p. 7.
The Court recognizes the importance and validity of this particularized concern.
Were one of the Plaintiff's principals to have provided a written statement or testimony
which contradicts the claims in the federal litigation about, for example, market
competitiveness or barriers to entry, that may not only be relevant, but it may easily
overcome whatever state concerns may be applicable. With that in mind, the Court
conducted its in camera review of the subpoena and the response of independent counsel
for Consolidated Waste Services. That review confirms the representation of Twin
Bridges’ counsel that there were no written statements or testimony of Scott Earl or
other representative of Twin Bridges that were produced in response to the subpoena.
Regarding documentation, a review of the document ledger establishes that a significant
number (approximately 600 pages) of the documents produced were simply copies of
“| the pleadings in the federal and state court litigations between the parties. Beyond that,
the documents consisted generally of contracts, disposal agreements, asset purchase
agreements, bills of sale, lease agreements, RFIs and RFDs. All of these are items which
are actively the subject of discovery in this action and are being obtained directly from
the opposing party, and there is no showing currently that the production of the Attorney
General’s subpoena and the response is necessary to facilitate that process. Moreover,
Court does not feel it should direct production of documents from a third-party
without affording the Attorney General’s Office the opportunity to address such
disclosure. Doing so would only slow down the ongoing, and difficult discovery process
in this case and given the minimal relevance of the material submitted for review, the
Court finds that doing so would not be an expeditious use of the resources of either the
Court or the parties. Cf Krauss v. First City Nat. Bank & Tr. Co., 125 F.R.D. 80, 83
(S.D.N.Y. 1989) (“if plaintiff's direct discovery of the bank and of Williams did not turn
up any evidence of such defaults, there is no reason for an excursion through regulatory
reports in the hope that something may turn up.”).
Accordingly, based upon the review conducted and the record as it presently
stands, and for the reasons expressed during oral argument, the Court will not require
the Plaintiff to produce the New York State Attorney General’s Office subpoena, and
their counsel’s response.
IT IS SO ORDERED.
Dated: December 20, 2023
Albany, New York
Datel J Stenary
U.S™“Magistrate Judge