Jeanty v. Sciortino

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________________

VLADIMIR JEANTY,

Plaintiff,

6:22-CV-00319

v. (BKS/TWD)

DAVID BAGLEY, ESQ.,

Defendant.

_____________________________________________

APPEARANCES: OF COUNSEL:

Vladimir Jeanty

Plaintiff, pro se

P.O. Box 921173

Arverne, New York 11692

LIPES MATHIAS, LLP LAURA L. SPRING, ESQ.

Attorneys for Defendant Bagley

507 Plum Street – Suite 310

Syracuse, New York 13204

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

DECISION AND ORDER

Currently before the Court are motions to compel discovery filed by the only remaining

Defendant, David Bagley (“Bagley”), and by the Plaintiff. Dkt. Nos. 117, 118. Both parties

have filed opposition to the other party’s motion. Dkt. Nos. 119, 120. Before permitting the

filing of the motions, the Court held a discovery conference and directed the parties to confer

further in good faith about their discovery disputes. Dkt. Nos. 109, 114, 115, 116. At the

conference, the Court also directed Defendant to submit a copy of a disputed document, the Joint

Defense and Confidentiality Agreement (“JDA”), which Defendant claimed was exempt from

discovery under the attorney-client privilege, to the Court for an in camera review. Dkt. No.

109, 110. Plaintiff opposes that claimed exemption. Dkt. No. 111; see also Dkt. No. 118. For

the reasons discussed below, the motions to compel are denied in part and granted in part.

I. RELEVANT BACKGROUND AND THE CURRENT DISPUTES

Plaintiff brought this action against various Defendants under 42 U.S.C. § 1983 for

violations of the First and Fourteenth Amendments arising out of the Defendants’ alleged failure

to provide photographs sought in a New York Freedom of Information Law (“FOIL”) request

made by Plaintiff on October 30, 2019, and March 11, 2020. See generally Dkt. No. 32

(amended complaint).1 The FOIL requests were related to a previous action brought by Jeanty

against various City of Utica (“City”) police officers and officials arising out of his arrest in

October of 2009 (the “2016 Action”) and 22 photographs taken at the time of that arrest. See id.

All Defendants moved to dismiss the amended complaint, and the motions were granted entirely,

except the motion of Defendant Bagley who was the attorney for a City employee, Sean

Dougherty (“Dougherty”), in the 2016 Action. Dkt. Nos. 69, 84. Bagley’s motion was granted

in part. Id. Thus, the only remaining cause of action is a First Amendment retaliation claim

against Defendant Bagley. See generally Dkt. No. 69; see also Dkt. No. 32, ¶¶ 62-71.2

As relevant here, Plaintiff alleges Defendant Bagley and former Defendants William

Borrill (“Borrill”) and Zachary Oren (“Oren”) directed former Defendant Melissa Sciortino

(“Scortino”) not to respond to Plaintiff’s FOIL requests made during the pendency of the 2016

Action. Id. at 17, 28; see also Dkt. No. 32, ¶ 48. Plaintiff also alleges that “the JDA required

1 See also generally Dkt. No. 69 for a detailed overview of the claims and the underlying events.

2 Paragraph numbers are used where documents identified by the docket number of the Court’s

electronic filing system contain consecutively numbered paragraphs. Page references to

documents identified by the docket number refer to the page numbers automatically inserted by

the Court’s electronic filing system.

Bagley to make sure Dougherty did not testify truthfully about the circumstances regarding the

taking of photographs on 10/15/2009 involving Jeanty’s arrest[;] . . . required Bagley to make

sure Dougherty did not testify truthfully about the circumstances regarding how many

photographs were taken and when they were uploaded in the UPD RMS[; and] . . . required

Bagley not to divulge to Jeanty nor the Court how the photographs on the CDs that He and Oren

provided to Jeanty and the Court in 2018 and 2020 were modified.” Dkt. No. 32, ¶¶ 35-37.

Plaintiff makes further allegations that Bagley and Oren instructed former Defendant Sgt. Eden

Selimovic (“Selimovic”) to change file names on the subject photographs and to testify falsely at

his deposition in the 2016 Action. Id. at ¶¶ 41, 43.

Discovery ensued after all Defendants except Bagley were dismissed. Plaintiff served

Bagley with discovery demands. See Dkt. Nos. 117-5, 117-11.3 Likewise, Bagley served

Plaintiff with discovery demands. See Dkt. No. 117-4. Plaintiff served responses to Bagley’s

demands and supplemented the responses after receiving a deficiency letter from Defendant and

after the Court conference. See Dkt. Nos. 109, 117-7, 117-9, 117-10, 117-13. Defendant served

responses to Plaintiff’s demands, and supplemented them after receiving a deficiency letter from

Plaintiff and after the Court conference. See Dkt. Nos. 117-6, 117-8, 117-12. Plaintiff generally

argues that Defendant’s responses are improper because Defendant did not provide a privilege

log and stated general objections mainly on relevancy. See Dkt. No. 118. Plaintiff also

questions the veracity of Defendant’s statements that he does not have custody or control of

various documents demanded. Id. Defendant generally argues that Plaintiff’s responses are

incomplete, non-responsive, and improperly refer to entire documents including deposition

3 Both parties submitted some of the same discovery demands, responses, and letters with their

respective motions, but the Court will only reference one of the duplicate submissions.

transcripts from the 2016 Action without identifying the specific information in the documents or

transcripts that are responsive to the demands. Dkt. No. 117.

II. LEGAL STANDARD

“In general, a party may obtain discovery of any non-privileged matter that is relevant to

a claim or defense of any party and proportional to the needs of the case.” Johannes v. Lasley,

No. 17-CV-3899 (CBA) (AYS), 2019 WL 1958310, at *3 (E.D.N.Y. May 2, 2019) (citing Fed.

R. Civ. P. 26(b)(1)). “Nonetheless, a court has discretion to circumscribe discovery even of

relevant evidence by making any order which justice requires ‘to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense.’” Id. (citing Fed. R. Civ. P.

26(c)(1) and Herbert v. Lando, 441 U.S. 153, 177 (1979)).

Specifically, Rule 26(b) of the Federal Rules of Civil Procedure sets forth the scope and

limitations of permissible discovery:

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.

Information within this scope of discovery need not be admissible

in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “Relevance” under Rule 26 is “construed broadly to encompass any

matter that bears on, or that reasonably could lead to other matter that could bear on, any issue

that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); Barrett

v. City of N.Y., 237 F.R.D. 39, 40 (E.D.N.Y. 2006) (noting that the information sought “need not

be admissible at trial to be discoverable”).

However, even if the discovery sought by a party is found to be relevant, this Court must

still weigh that party’s right to obtain that discovery against the burden imposed on the party

from whom the discovery is sought. See Warnke v. CVS Corp., 265 F.R.D. 64, 69 (E.D.N.Y.

2010) (citing Mirkin v. Winston Res., LLC, No. 07-CV-02734, 2008 WL 4861840, at *1

(S.D.N.Y. Nov. 10, 2008)). “Because ‘[t]he trial court is in the best position to weight fairly the

competing needs and interest of parties affected by discovery,’ Rule 26 confers broad discretion

to weigh discovery matters.” Id. (citations omitted). As of 2015, the Rule is intended to

“encourage judges to be more aggressive in identifying and discouraging discovery overuse” by

emphasizing the need to analyze proportionality before ordering production of relevant

information. Fed. R. Civ. P. 26(b)(1) advisory committee’s notes to 2015 amendment. The

burden of demonstrating relevance remains on the party seeking discovery, and the newly

revised rule “does not place on the party seeking discovery the burden of addressing all

proportionality considerations.” Id. “Once relevance has been shown, it is up to the responding

party to justify curtailing discovery.” Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of New

York, 284 F.R.D. 132, 135 (S.D.N.Y. 2012). Moreover, a court may issue an order “to protect a

party or person from annoyance, embarrassment, oppression or undue burden or expense . . . .”

Id. (citing Fed. R. Civ. P. 26(c)).

III. DISCUSSION

A. The Joint Defense and Confidentiality Agreement

At the direction of the Court, Defendant Bagley submitted a copy of the JDA entered into

between Bagley, who was tasked with representing Dougherty in the 2016 Action, and counsel

for the City of Utica and others in the 2016 Action for an in camera review by the Court. Dkt.

No. 109, 110. Plaintiff argues the JDA “is evidence needed to support Plaintiff’s claim that

Defendant Bagley is a state actor.” Dkt. No. 111 at 2. Defendant claims the attorney-client

privilege and the related common interest doctrine apply to exempt the JDA from disclosure.

Dkt. No. 110.

The general requirements and the purpose of the attorney-client privilege are well

established. “The attorney-client privilege forbids an attorney from disclosing confidential

communications that pass in the course of professional employment from client to lawyer. ‘The

relationship of attorney and client, a communication by the client relating to the subject matter

upon which professional advice is sought, and the confidentiality of the expression for which

protection is claimed, all must be established in order for the privilege to attach.’” Carter v.

Cornell University, 173 F.R.D. 92, 94 (S.D.N.Y. 1997) (quoting United States v. Schwimmer,

892 F.2d 237, 243 (2d Cir. 1989)). “The privilege is intended to encourage clients to be

forthcoming and candid with their attorneys so that the attorney is sufficiently well-informed to

provide sound legal advice.” Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981);

United States v. Adlman, 68 F.3d 1495, 1499 (2d Cir. 1995)).

“The work-product doctrine, codified for the federal courts in Fed. R. Civ. P. 26(b)(3), is

intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories

and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.”

United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir. 1998) (citing Hickman v. Taylor, 329

U.S. 495, 510-11 (1947)) (internal quotation marks omitted). Rule 26(b)(3) states that, subject to

limited exceptions: “a party may not discover documents and tangible things that are prepared in

anticipation of litigation or for trial by or for another party or its representative (including the

other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed. R. Civ. P.

26(b)(3)(A).

The “‘common interest’ doctrine, erroneously called ‘common interest privilege’ or ‘joint

defense privilege,’ is an exception to the general rule that voluntary disclosure of confidential,

privileged material to a third party waives any applicable privilege.” Sokol v. Wyeth, Inc., No. 07

Civ. 8442, 2008 WL 3166662, at *5 (S.D.N.Y. Aug. 4, 2008) (citation omitted). “It serves to

protect the confidentiality of communications passing from one party to the attorney for another

party where a joint defense effort or strategy has been decided upon and undertaken by the

parties and their respective counsel.” Schwimmer, 892 F.2d at 243. It exists “to protect the free

flow of information from client to attorney . . . whenever multiple clients share a common

interest about a legal matter.” Id. at 243-44. The doctrine “is not an independent source of

privilege or confidentiality” so that “[i]f a communication is not protected by the attorney-client

privilege or the attorney work-product doctrine, the common interest doctrine does not apply.”

Sokol, 2008 WL 3166662, at *5 (citations omitted); see also HSH Nordbank AG New York

Branch v. Swerdlow, 259 F.R.D. 64, 71 (S.D.N.Y. 2009).

The Court reviewed the JDA in camera and finds that it contains attorney-client

privileged confidential information relating to the defense of Bagley’s client, Dougherty, and

other defendants in the 2016 Action. The JDA is also protected under the work-product doctrine

since it was created during the pendency of the 2016 Action. It sets forth information about

cooperation and coordination of defense efforts among the City defendants, including

Dougherty, in the 2016 Action. The JDA was clearly designed to further all of the City

defendants’ interests in the 2016 Action. Thus, the Court finds that Bagley’s client, Dougherty,

shared a common legal interest with the defendant City and other City defendants who were all

defending Jeanty’s constitutional claims in the 2016 Action.

Additionally, upon the Court’s complete in camera review of the JDA, the Court finds no

relevant or discoverable information contained in it. There is absolutely no information

requiring Bagley to ensure Dougherty did not testify truthfully about the circumstances regarding

Jeanty’s arrest or about the photographs taken then or any alleged modifications of the

photographs. There is nothing in the JDA about instructing former Defendant Selimovic to

change file names on the subject photographs or to testify falsely in the 2016 Action. There is

nothing in the JDA about Bagley instructing Dougherty, former Defendant Scortino, or anyone at

the City involved in the 2016 Action not to respond to the subject FOIL requests. There is

nothing in the JDA about the FOIL requests or the photographs at all. As such, the contents of

the JDA are not relevant to the remaining claim against Bagley of retaliation related to the FOIL

requests.

However, the Court finds that information about the identity of the parties to the

agreement is not confidential. Therefore, the Court finds that the first paragraph of the JDA

should be disclosed, and the signature page of the JDA should be disclosed. Accordingly,

Defendant Bagley is to produce the JDA in redacted form, leaving only the first paragraph that

begins “This JOINT DEFENSE AND CONFIDENTIALITY AGREEMENT . . .” and the

signature page unredacted. The redacted JDA shall be produced within 45 days of the date of

this Decision and Order.

B. Plaintiff’s Demands to Defendant Bagley

Plaintiff served Interrogatories and Requests for Production of Documents. Dkt. No.

117-5. Defendant Bagley served responses and amended responses. Dkt. Nos. 117-6, 117-12.

Plaintiff generally argues that Defendant has not properly or fully responded to document

demands because Defendant asserts general objections and attorney-client based privileges, and

Bagley also indicates that he is not in possession of documents or information requested. Dkt.

No. 118-1 at 3-5. Plaintiff also argues that the JDA was entered into fraudulently and therefore

the privilege claims must fail. Id. at 5-7. Further, Plaintiff asks the Court to reconsider the

directive that “Plaintiff’s demand for cell and electronics information is denied.” Id. at 2-3; see

also Dkt. No. 109. Defendant argues Plaintiff’s demands seek information that is irrelevant to

the remaining claim of retaliation, wherein Plaintiff alleges the denial of his FOIL requests made

during the pendency of the 2016 Action had a chilling effect on his ability to file more FOIL

requests. See generally Dkt. No. 119; see also Dkt. No. 84 at 4. Defendant also indicates most

of the information sought by Plaintiff’s demands is privileged and, in any event, he does not have

possession, custody, or control of any documents that may be responsive to Plaintiff’s requests,

and he cannot produce what he does not have. Dkt. No. 119 at 5, 7.

Most of Plaintiff’s disputed demands request information about verbal or written

communications pertaining to his FOIL requests made during the pendency of the 2016 Action

between: (1) Defendant Bagley and former Defendants Oren, Borrill, and Charles Brown

(“Brown”), all of whom acted as attorneys representing the City of Utica and/or other City

employees in the 2016 Action; (2) Defendant Bagley and former Defendants Scortino and

Selimovic, who were not parties to the 2016 Action but as City employees were allegedly

involved in the denial of the FOIL requests; (3) Defendant Bagley and Dougherty, his client in

the 2016 Action; and (4) Defendant Bagley and the other City attorneys concerning the JDA

related to Bagley’s defense of Dougherty in the 2016 Action. See Dkt. Nos. 117-5 (Interrogatory

Nos. 3-6, 8-9, 12, 16-17; Document Requests 1, 3, 5-14, 16-20), 117-11. These demands as

written seek an expansive amount of information, including verbal conversations, documents,

text messages, emails, data from Bagley’s computer hard drives, and Bagley’s cell phone data

and records, all to include information for the period of January 1, 2018, to the present. Id. at 8.

However, Plaintiff has provided absolutely no explanation of how the vast amount of

information regarding communications between Defendant Bagley and other City of Utica

employees including former parties, some of whom are City attorneys, is relevant to the sole

remaining claim of retaliation against Bagley. See Dkt. No. 118-1. Instead, Plaintiff claims in a

conclusory fashion that such information “must be provided” and documents “would lead to

material facts in support” of his remaining claim or the defenses or that the documents “are

relevant and within the scope of the remaining claim.” Id. at 8, 9, 10. The burden of

demonstrating relevance remains on the party seeking discovery since “[a] party claiming that a

request is important to resolve the issues should be able to explain the ways in which the

underlying information bears on the issues as that party understands them.” Fed. R. Civ. P. 26

advisory committee’s note to 2015 amendment; see, e.g., Edmar Fin. Co., LLC v. Currenex, Inc.,

347 F.R.D. 641, 646 (S.D.N.Y. 2024) (“The party seeking discovery bears the initial burden of

proving the discovery is relevant.”) (citation omitted). Plaintiff has not met his burden here. Nor

has Plaintiff made any effort to limit the information sought and he has not provided any

particularity to describe how this information relates to the remaining claim of retaliation.

Defendant has asserted the information is privileged because it seeks communications

between attorneys defending the City and its employees in the 2016 Action, communications

between Bagley and his client, Dougherty, in the 2016 Action, and communications between

Bagley and other City employees during the 2016 Action. Dkt. No. 117-6. Thus, Bagley argues

the information sought by Plaintiff involves confidential communications between lawyers and

their clients during the course of legal representation related to the 2016 Action and therefore is

subject to attorney-client privilege and the attorney work-product privilege. Id. Defendant also

argues the materials sought are not relevant to the remaining claim of retaliation against Bagley,

and the requests are otherwise overly broad and unduly burdensome. Id.

Plaintiff has made no showing that there has been any waiver of attorney-client

relationships here, or that the information is not work-product, or that the common interest

doctrine should not apply. He argues, without any basis, that Bagley’s “claims of privileges all

fail because any party in the [2016 Action] . . . that was part of the Joint Defense Agreement, had

no privilege claim as that agreement was entered into fraudulently by all involved at the direction

of the Defendant Bagley and Non-party Oren.” Dkt. No. 118-1 at 6. Plaintiff also argues

without any basis that “Bagley directed Dougherty to testify falsely during a deposition[] and

later at trial regarding material issues of fact in the [2016 Action].” Id. Thus, Plaintiff posits the

crime-fraud exception to claims of attorney-client privilege applies thus invalidating the

privilege. Id. The Court disagrees.

“It is well-established that communications that otherwise would be protected by the

attorney-client privilege . . . are not protected if they relate to client communications in

furtherance of contemplated or ongoing criminal or fraudulent conduct.” In re Grand Jury

Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir. 1984) (citations

omitted). Proof beyond a reasonable doubt that a crime or fraud has been committed is not

required by courts. See In re Sealed Case, 676 F.2d 793, 814 (D.C. Cir. 1982). However, mere

allegations of a crime or fraud cannot defeat a claim of privilege; prima facie evidence that the

crime or fraud has some foundation in fact is required to invoke the exception. See id. at 815

n.84 (citation omitted).

Defendant Bagley was defending a City employee, Dougherty, in the 2016 Action when

the documents and information Plaintiff seeks were generated, and the City employees who were

not parties to the 2016 Action were responding to requests by the attorneys involved in

defending the 2016 Action. The communications, documents, and information sought in

Plaintiff’s expansive demands clearly were generated to defend the City and its employees who

were parties to the 2016 Action and were related to furthering defense interests. Moreover, a

party may not discover information that is prepared “in anticipation of litigation or for trial by or

for another party or its representative . . . unless they are otherwise discoverable under Rule

26(b)(1); and . . . the party shows that it has a substantial need for the materials . . . and cannot,

without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P.

26(b)(3)(A)(i), (ii). Plaintiff has not made any such showing here.

Moreover, Plaintiff’s bald assertion that any party that was part of the JDA in the 2016

Action has no claim of privilege because “that agreement was entered into fraudulently by all

involved at the direction of the Defendant Bagley and Non-party Oren” is insufficient to

overcome the privilege. Dkt. No. 118-1 at 6. Plaintiff has not presented any facts upon which he

bases his speculative claim that the JDA was “entered into fraudulently” such that there is no

prima facie evidence of any crime or fraud to undermine the attorney-client privilege.

For these reasons, the Court finds the attorney-client privilege and work-product privilege

apply to the information sought by the subject demands in dispute. The Court also finds the

common interest doctrine applies since the City, the non-party City attorneys and employees, and

Defendant Bagley all shared a common interest to defend the City and its employees in the 2016

Action. Moreover, Plaintiff has not shown the relevancy of the information sought to the

remaining claim of retaliation against Defendant Bagley; he has not shown the information is

discoverable and not privileged; and he has not shown any substantial need for the materials to

prepare his case. Accordingly, the information Plaintiff requests in his demands is privileged

and therefore exempt from disclosure.

However, the Court modifies its prior order, Dkt. No. 109, and directs Defendant Bagley

to produce a privilege log for any responsive written documents (e.g., letters, emails, texts,

memos) regarding communications between Defendant Bagley and former Defendants Oren,

Brown, Borrill, Selimovic, and Scortino and between Defendant Bagley and Dougherty

regarding the denial of Plaintiff’s FOIL requests made on October 30, 2019, and March 11,

2020. The Court also modifies the timeframe to be addressed for responsive documents, if any,

in the privilege log to October 30, 2019, through October 30, 2020. The Court finds the

attorney-client privilege applies to any such communications because Defendant Bagley and

former Defendants Oren, Borrill, and Brown, all acted as attorneys representing the City of Utica

and other City employees in the 2016 Action; Scortino and Selimovic were employees of the

City allegedly involved in the FOIL requests; and Dougherty was Bagley’s client in the 2016

Action. The privilege log shall be produced no later than 45 days from the date of this Decision

and Order. If no responsive documents exist in Defendant Bagley’s possession, such that a

privilege log is unnecessary, Defendant Bagley shall provide an affidavit stating that he has no

such responsive documents no later than 45 days from the date of this Decision and Order.

To be clear, Defendant Bagley is not required to produce documents or a privilege log for

documents he does not possess. “The burden of establishing control over the documents being

sought rests with the demanding party.” New York ex rel. Boardman v. Nat’l R.R. Passenger

Corp., 233 F.R.D. 259, 268 (N.D.N.Y. 2006) (citing DeSmeth v. Samsung Am., Inc., No. 92-Civ.

3710(LBS)(RLE), 1998 WL 74297, at *9 (S.D.N.Y. Feb. 20, 1998)). “Generally, a party’s good

faith averment that the items sought simply do not exist, or are not in his possession, custody, or

control, should resolve the issue of failure of production since one cannot be required to produce

the impossible.” Mason Tenders Dist. Council of Greater New York v. Phase Constr. Servs.,

Inc., 318 F.R.D. 28, 42 (S.D.N.Y. 2016) (citation and quotation marks omitted). Plaintiff’s

averments that Defendant Bagley “is still operating under the Joint Defense Agreement and by

that document still has possession, custody, and control of the requested material/record” fail to

actually demonstrate that Defendant Bagley is in possession, custody, or control of responsive

materials from the City or other City attorneys and employees.

In sum, Defendant Bagley must produce the redacted JDA and the privilege log and/or an

affidavit as directed herein within 45 days from the date of this Decision and Order. No other

responses are due from Defendant Bagley.

C. Defendant Bagley’s Demands to Plaintiff

Defendant Bagley moves to compel further responses from Plaintiff to Interrogatories

and Requests for Production served by Bagley. Dkt. No. 117; see also Dkt. No. 117-4. Plaintiff

responded to the demands and Bagley’s deficiency notice, then subsequently served a

supplemental response. Dkt. Nos. 117-7, 117-10, 117-13. Defendant generally argues that

Plaintiff’s responses are incomplete and non-responsive, and improperly refer to lengthy

documents rather than providing direct responses. See generally Dkt. No. 117-1. Defendant

specifically avers that Plaintiff should respond more fully to Interrogatory Nos. 1-8, 10, 11, 13-

15, and provide documentation that responds to corresponding Requests for Production. Dkt.

No. 117-1, ¶¶ 23, 28, 29, 33, 37, 40. Plaintiff asserts that the responses provided, including

documents, are sufficient, and that Bagley’s counsel is requesting him to “act as her paralegal.”

Dkt. No. 120, ¶¶ 11, 13.

In the Interrogatories for example, Defendant generally asks for the basis of various

claims in the operative First Amended Complaint that allege conduct on the part of Bagley that

he told non-party Sciortino not to respond to Plaintiff’s FOIL requests and directed Scortino to

retaliate against Plaintiff; and that Bagley exerted influence over Scortino about the FOIL

requests. Dkt. No. 117-4 at 7-9 (Interrogatory Nos. 1, 3, 4, 5, 6); see also Dkt. No. 32, ¶¶ 29, 47-

50. Interrogatory No. 2 seeks the factual basis for Plaintiff’s claim that Bagley entered into the

JDA when defending Dougherty in the 2016 Action which required Bagley to make sure

Dougherty did not testify truthfully about the photographs. Id. at 7 (Interrogatory No. 2); see

also Dkt. No. 32, ¶¶ 34-36. Defendant also requests information that forms the basis of

Plaintiff’s First Amendment retaliation claim against Bagley, and to identify Bagley’s specific

adverse action against Plaintiff. Id. at 8 (Interrogatory Nos. 7, 13); see also Dkt. No. 32, ¶¶ 62-

71.

In response to these Interrogatories, Plaintiff poses general objections, claims privilege

asserting Defendant requests information about how Plaintiff will prosecute his case, and/or

avers that the questions were better suited for a deposition. Dkt. No. 117-7 at 3-8 (Interrogatory

Responses 1 -7, 13). Plaintiff also refers Defendant to the First Amended Complaint and to the

entire deposition transcripts from the 2016 Action of Dougherty and Michael Cerminaro

(“Cerminaro”), another City defendant in the 2016 Action. Id. In providing amended responses

to Defendant’s demands, Plaintiff indicated he “had no further facts or information at this time”

to these particular Interrogatories. Dkt. No. 117-13. These responses are insufficient.

Defendant is entitled to information that forms the basis of Plaintiff’s claim of First Amendment

retaliation, and to any documentary information that supports the claim. Fed. R. Civ. P. 26(b)(1).

Therefore, Plaintiff is directed to respond more fully to Interrogatory Nos. 1-7, and 13.

Plaintiff must also specifically cite to the location in the deposition transcripts of Dougherty and

Cerminaro that responds to any particular Interrogatory by referencing the page numbers of their

depositions where the information is found. Plaintiff must provide these updated responses

within 45 days from the date of this Decision and Order. If Plaintiff does not have any facts or

information to form the basis of his First Amendment retaliation claim as requested in

Interrogatory Nos. 1-7, and 13, then Plaintiff shall provide an affidavit stating that he has no such

facts or information responsive to the specific Interrogatory (or Interrogatories) no later than 45

days from the date of this Decision and Order.

The Court finds that Plaintiff has provided sufficient information regarding Interrogatory

Nos. 8, 10, 11, 14, and 15 through his responses and supplemental responses. In several of the

responses, Plaintiff has also indicated he is not in possession of the requested information. As

noted above, a party’s good faith averment that the items are not in his possession resolves the

issue of failure of to produce such information. Mason Tenders Dist. Council of Greater New

York, 318 F.R.D. at 42.

To the extent that Plaintiff and Defendant seek to preclude the other party from offering

information at trial on any of the issues pertaining to this discovery dispute, those requests are

denied without prejudice.

IV. CONCLUSION

For the reasons stated, the Court finds both Plaintiff and Defendant must provide further

responses to their respective discovery demands as directed in this Decision and Order.

WHEREFORE, it is hereby

ORDERED that Defendant Bagley’s motion (Dkt. No. 117) to compel is GRANTED in

part and DENIED in part consistent with this Decision and Order; and it is further

ORDERED that Plaintiff's motion (Dkt. No. 118) to compel is GRANTED in part and

DENIED in part consistent with this Decision and Order; and it is further

ORDERED that further responses as directed herein shall be served by Defendant and

Plaintiff within 45 days of this Decision and Order; and it is further

ORDERED that discovery deadlines are reset as follows: Plaintiff's Expert Disclosure

Deadline is 7/14/2025; Defendant’s Expert Disclosure Deadline is 8/28/2025; Rebuttal Expert

Disclosure Deadline is 9/12/2025; Discovery due by 10/14/2025; Discovery Motions due

10/28/2025; and Dispositive Motions to be filed by 12/12/2025; and it is further

ORDERED that the Clerk provide to Plaintiff a copy of this Decision and Order, along

with copies of the unpublished decisions cited herein in accordance with the Second Circuit

decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam); and it is further

ORDERED that no costs or sanctions are awarded to any party.

Dated: March 24, 2025

Syracuse, New York

United States Magistrate Judge

17

2019 WL 19958310

motion for reconsideration, the Court declines to modify its

2/19/2019 Order.

KeyCite Yellow Flag - Negative Treatment

Distinguished by Brown v. Barnes and Noble, Inc., S.D.N.Y., December

23, 2019

DISCUSSION

2019 WL 1958310

Only the Westlaw citation is currently available. I. Legal Principles: Standard Applicable on Motions for

United States District Court, E.D. New York. Reconsideration

The standard for granting a motion for reconsideration is

Lisa D. JOHANNES, Plaintiff, strict, and “[r]econsideration will generally be denied unless

v. the moving party can point to controlling decisions or data

Michelle M. LASLEY and United that the court overlooked — matters, in other words, that might

States Postal Service, Defendants. reasonably be expected to alter the conclusion reached by

the court.” Cedar Petrochemicals, Inc. v. Dongbu Hannong

17-CV-3899 (CBA)(AYS) Chem. Co., Ltd., 628 F. App'x 793, 796 (2d Cir. 2015)(quoting

| Shrader_v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.

Signed 05/02/2019 1995)); see also Oparah v. New York City Dep't of Educ., 670

F. App'x 25, 26 (2d Cir. 2016) (“The standard for granting

Attorneys and Law Firms a motion to reconsider ‘is strict, and reconsideration will

Douglas Adam Milch, Wingate Russotti Shapiro & Halperin, generally be denied unless the moving party can point fo

New York, NY, for Plaintiff controlling decisions or data that the court overlooked. );

S.D.N.Y./E.D.N.Y. Local Civ. R. 6.3 (The moving party must

Mary M. Dickman, United States Attorneys Office Eastern “set[ ] forth concisely the matters or controlling decisions

District of New York, Central Islip, NY, for Defendants. which counsel believes the Court has overlooked.”).

It is thus well settled that a motion for reconsideration is “ ‘not

MEMORANDUM & ORDER a vehicle for relitigating old issues, presenting the case under

new theories, securing a rehearing on the merits, or otherwise

ANNE Y. SHIELDS, United States Magistrate Judge taking a second bite of the apple.’ ” Salveson v. JP Morgan

Chase & Co., 663 F. App'x 71, 75-76 (2d Cir. 2016) (quoting

*1 Plaintiff Lisa D. Johannes (“Johannes” or “Plaintiff) Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36,

commenced this action against Michelle M. Lasley (“Lasley”) 59 (2d Cir. 2012)). A motion for reconsideration is “ ‘neither

and the United States Postal Service (“USPS”) (collectively an occasion for repeating old arguments previously rejected

“Defendants”) pursuant to the Federal Tort Claims Act, 28 nor an opportunity for making new arguments that could have

U.S.C. 8§ 1346, 2671 et seq., alleging that Plaintiff sustained previously been made.’ ” Salveson v. JP Morgan Chase & Co.,

serious injury and economic loss as a result of an incident that 166 F. Supp. 3d 242, 248 (E.D.N.Y. 2016) (quoting Simon

occurred on January 5, 2016, involving Plaintiffanda Postal =, smith & Nephew, Inc., 18 F. Supp. 3d 423, 425 (S.D.N.Y.

truck driven by Lasley, a USPS employee acting in the course 2014)), aff'd, 663 F. App'x 71 (2d Cir. 2016). Simply put, in

of her employment. See generally Complaint, Docket Entry order to prevail on a motion for reconsideration, “the moving

(“DE”) [1]. Plaintiff alleges she was hit by the postal truck —_ party must demonstrate that the Court overlooked controlling

and the collision was due to Lasley's negligence. Id. decisions or factual matters that were put before the Court on

the underlying motion.” Lichtenberg v. Besicorp Grp. Inc., 28

On December 19, 2018, Plaintiff filed a letter-motion to & App'x 73,75 (2d Cir. 2002) (citations and internal quotation

compel production of documents. DE [18]. On February 19, marks omitted); see also Stoner v. Young Concert Artists

2019, this Court granted Plaintiff's motion. See Electronic fing. , 2013 WL 2425137, at *1 (S.D.N.Y. May 20, 2013) (“A

Order dated 2/19/2019. Currently before the Court is motion for reconsideration is an extraordinary remedy, and

Defendants’ motion for reconsideration. See DE [19]. For this Court will not reconsider issues already examined simply

the reasons discussed below, having considered Defendants' because [a party] is dissatisfied with the outcome of his case.

(alteration in original). reasonable control of the movant, and (4) whether the movant

acted in good faith. Id. The Second Circuit has held that the

third factor—the reason for the delay, and whether it is within

II. The Motion the reasonable control of the movant—is the most important,

*2 Defendants argue that because Plaintiff's discovery since the other three factors will often favor the movant. See

motion was grated as unopposed, this Court should grant the Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d

motion for reconsideration. Defendants further argue that the Cir. 2003). “The equities will rarely if ever favor a party who

documents in question are indeed protected by privilege and ‘fail[s] to follow the clear dictates of a court rule.’ ” Id. at

thus are not entitled to production. 366–67 (citing Canfield v. Van Atta Buick/GMC Truck Inc.,

127 F.3d 248, 249–50 (2d Cir. 1997)). Thus, “[w]here ... the

rule is entirely clear ... a party claiming excusable neglect

A. Defendants' Failure to Timely Oppose

will, in the ordinary course, lose under the Pioneer test.”

The Defendants first argue that because the Court granted

Canfield, 127 F.3d at 249–50 (holding not clearly erroneous

Plaintiff's application as unopposed and did not base its

the district court's decision that a lawyer's failure to file

decision on the merits, the Court should reconsider its Order

motion papers within the time limit established by a local rule

and excuse Defendants' failure to oppose the motion.

was not excusable neglect under Rule 60(b)); see Silivanch,

333 F.3d at 367–70 (collecting cases finding no excusable

Preliminary, this Court points out that Plaintiff filed her

neglect where counsel failed to comply with a clear deadline).

motion on December 19, 2018. While Defendants cite to

the lapse of appropriations that began on December 21,

*3 Here, the Court finds that Defendants failed to

2018 and lasted through January 26, 2019, which prohibited

establish that their failure to respond was a product of

Department of Justice attorneys from working, among the

“excusable neglect.” Counsel's excuses for her failure to

reasons for Defendants' failure to timely respond to the

adhere to the deadline are unconvincing. Counsel cites “her

motion, this Court did not issue its Order granting Plaintiff's

own administrative error” and lapse of approbations from

motion until February 19, 2019. Further, Defendants never

December 21, 2019 to January 26, 2019 as the reason for

sought a stay of the case during the 35-day appropriations

her failure to respond. However, “her own administrative

lapse, nor sought an extension or time to respond to the

error” is no excuse for lack of diligence in complying

motion once appropriations were restored. Recognizing the

with clearly established deadlines. Moreover, while the lack

substantial time-gap between the restoration of appropriations

of appropriations that forced counsel not to work from

and this Court's Order, namely some three-weeks, defense

December 21, 2019 to January 26, 2019 was surely not within

counsel then cites to “her own administrative error” as the

her control, upon restoration of the appropriations counsel

reason for the failure to respond. See Defs' Memo at 5, DE

could and should have made a proper request for an extension

[19-1]. Defendants have not provided a reasonable excuse and

of time under Rule 6(b). See Delacruz v. Stern, 166 F.3d

thus have failed to show the requisite good cause needed for

1200 at *2 (2d Cir. 1998) (“[i]f additional time to replead

this Court to vacate its Order.

was needed because of the attorney's marital problems, an

application for an extension of time should have been filed.”).

Under Federal Rule of Civil Procedure 6(b)(1)(B), “[w]hen

See Turner v. Hudson Transit Lines, Inc., 1991 WL 123966,

an act may or must be done within a specified time, the

at *3 (S.D.N.Y. July 2, 1991) (“Counsel's excuse for his

court may, for good cause, extend the time ... on motion

untimely submission of papers is his own vacation ... counsel

made after the time has expired if the party failed to act

could have readily arranged for another attorney to cover for

because of excusable neglect.” Fed. R. Civ. P. 6(b) (1)(B).

him during that period, or could have made a proper request

The determination whether a party's neglect is “excusable”

for an extension of time under Rule 6(b) before leaving for

is, “at bottom an equitable one, taking account of all relevant

vacation. Further, it would not seem impossible to draft a

circumstances surrounding the party's omission.” Pioneer Inv.

memorandum of law supporting an objection to a simple

Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,

discovery ruling in the six days between Judge Francis's

395 (1993). In making that determination, the Supreme Court

ruling and the planned start of defense counsel's vacation.”).

has directed courts to consider the following factors: (1) the

danger of prejudice to the opposing party; (2) the length of

As noted by the Second Circuit,

The self-critical analysis privilege concerns situations where “

[w]e operate in an environment ... in ‘an intrusion into the self-evaluative analysis of an institution

which substantial rights may be, and would have an adverse effect on the [evaluative] process, with

often are, forfeited if they are not a net detriment to a cognizable public interest.’ ” Troupin v.

asserted within time limits established Metro. Life Ins. Co., 169 F.R.D. 546, 548 (S.D.N.Y. 1996)

by law ... We ... have considerable (citations and quotation omitted). Put another way, “if a party

sympathy for those who, through has conducted a confidential analysis of its own performance

mistakes-counsel's inadvertence or in a matter implicating a substantial public interest, with

their own-lose substantial rights in a view towards correction of errors, the disclosure of that

that way. And there is, indeed, an analysis in the context of litigation may deter the party from

institutionalized but limited flexibility conducting such a candid review in the future.” Wimer v.

at the margin with respect to rights lost Sealand Serv., Inc., 1997 WL 375661 at *1 (S.D.N.Y. July 3,

because they have been slept on. But 1997).

the legal system would groan under

the weight of a regimen of uncertainty Whether the self-critical analysis privilege should be

if which time limitations were not recognized in federal courts has yet to be decided by the

rigorously enforced—where every Supreme Court or the Second Circuit. One court observed that

missed deadline was the occasion for “this particular privilege has led to a checkered existence in

the embarkation on extensive trial and the federal courts.” Wimer, 1997 WL 375661 at *1.

appellate litigation to determine the

equities of enforcing the bar. *4 In Robinson v. Untied States, 205 F.R.D. 104 (N.D.N.Y.

2001), the same redactions at issue here, namely the Postal

Service redacted the same sections to the same 1769

Silivanch, 333 F.3d at 367-68. Accordingly, Defendants' forms, were examined. The court held that such redaction

motion for reconsideration of this Court's Order granting was improper and ordered the Post Office to produce

Plaintiff's discovery application due to Defense counsel's unredacted copies. Id. at 109. (Statements as to how the

failure to respond is denied. accident occurred, why it occurred, management factors that

contributed to the accident, the root causes of the accident, and

actions that have been or will be taken to prevent recurrence

B. The Production Is Not Privileged of each factor and cause are not covered by the privilege.) The

Defendants claim that the prevention of manifest injustice Robinson court went on to find that the Form 1769 sections

warrants reconsideration of this Court's decision to grant entitled “What actions have or will be taken to prevent

Plaintiff's motion to compel production of the unredacted recurrence of each factor and cause? Expected completion

documents. Defendants claim the self-critical analysis date of each?” and “explain how the preventive action will

privilege applies to the redactions at issue as well as the work- eliminate or reduce cause(s) and prevent similar accidents”

product privilege. However, Defendants have not cited to any were also not privileged. Id. at 109-110. The Robinson

controlling case law to dissuade this Court from ordering the court concluded that the accident reports are prepared in

production of the unredacted documents. the course of the Post Office's business for the purpose of

preventing future accidents. Robinson held that it would be

In general, a party may obtain discovery of any non-privileged implausible to believe that the Post Office would cease its

matter that is relevant to a claim or defense of any party practice of investigating accidents and writing up the results,

and proportional to the needs of the case. Fed. R. Civ. P. in order to the prevent future accidents, on the basis that

26(b)(1). Nonetheless, a court has discretion to circumscribe such reports could be discoverable, ultimately finding that

discovery even of relevant evidence by making any order producing the information would not cause the Post Office

which justice requires “to protect a party or person from injury, “thwart desirable social policies, or affect a substantial

annoyance, embarrassment, oppression, or undue burden or public interest.” Id. at 110.

expense.” Fed. R. Civ. P. 26(c)(1); see Herbert v. Lando, 441

U.S. 153, 177 (1979).

withholding otherwise discoverable materials, “the burden is Consistent with these principles, courts in the Second Circuit

on a party claiming the protection of a privilege to provide have uniformly concluded that “[t]he failure of a party to

evidence sufficient to establish the essential elements of list a document withheld during the course of discovery

the privileged relationship.” S.E.C. v. NIR Grp., LLC, 283 on a privileged log ... ordinarily results in a finding that

F.R.D. 127, 131 (E.D.N.Y. 2012) (citations omitted). “This the privilege otherwise asserted has been waived.” Feacher

burden cannot be discharged by mere conclusory or ipse dixit v. Intercontinental Hotels Grp.,2007 WL 3104329, at *5

assertions.” Id. (N.D.N.Y. Oct. 22, 2007); see FG Hemisphere Associates,

L.L.C. v. Republique Du Congo, 2005 WL 545218, at *6

Waiver of privilege may occur where a party fails to list (S.D.N.Y. Mar. 8, 2005) (“As other judges in this District and

withheld documents on its privilege log. Pursuant to Federal I have repeatedly held, the unjustified failure to list privileged

Rule of Civil Procedure 26(b)(5)(A), a party who withholds documents on the required log of withheld documents in

documents on the account of privilege must “describe the a timely and proper manner operates as a waiver of any

nature of the documents, communications, or tangible things applicable privilege.”) (citations omitted); accord Kogut v.

not produced or disclosed—and do so in a manner that, Cty. of Nassau, No. 06-cv-6695, 2011 WL 13284714, at *4

without revealing information itself privileged or protected, (E.D.N.Y. Nov. 14, 2011) (“The failure of defendants to list

will enable other parties to assess the claim.” Fed. R. Civ. the ... documents [in question] on a privilege log constitutes

P. 26(b)(5)(A). Consistent with that Federal Rule, courts a waiver of any applicable privilege.”).

typically require that parties provide a detailed privilege

log for all documents withheld. See Trudeau v. N.Y. State *5 In the instant action, Defendants failed to serve a

Consumer Prot. Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006) privilege log. Therefore, any potential privilege has now been

(“In this respect, and in order to evaluate and facilitate the waived.

determination of whether a privilege exists, courts generally

require compliance with th[e] statutory mandate [of Fed. R. In support of their claim of privilege, Defendants cite, inter

Civ. P. 26(b)(5)] that an adequately detailed privilege log be alia, to Warner v. United States, a Rhode Island case for the

provided.”). Fed. R. Civ. P. 26 is further supplemented by assertion that the materials should not be disclosed. 2009

Local Civil Rule 26.2, which requires that a party withholding WL 3698018, *4 (D. R. I Nov. 2, 2009). However, while

documents on the grounds of privilege set forth: “(i) the type Defendants are correct that court found that the United States

of document, e.g., letter or memorandum; (ii) the general could not be compelled to produce the unredacted forms to

subject matter of the document; (iii) the date of the document; a plaintiff in an action brought pursuant to the FCTA, the

and (iv) the author of the document, the addressees of the court upheld the redaction only after finding that the redacted

document, and any other recipients, and, where not apparent, materials were after-the-fact opinions and recommendations

the relationship of the author, addressees, and recipients to of an investigator.” Id. at *4. Here, the Defendants failed

each other....” Local Civil Rule 26.2(a)(2)(A); see also Go to serve a privilege log and use the instant motion as their

v. Rockefeller Univ., 280 F.R.D. 165, 174 (S.D.N.Y. 2012) initial attempt to justify the claim of privilege. Defendants

(citing Fed. R. Civ. P. 26(b)(5) and Local Civil Rule 26.2 improperly utilize the instant motion for reconsideration to

in analyzing the sufficiency of a privilege log). In assessing take a “second bite of the apple.” Therefore, unlike the

the adequacy of a privilege log, courts must also ask whether circumstances in Warner, whether the materials in question

it “suffice[s] to establish each element of the privilege or are factual, opinion or mixed motive cannot be determined.

immunity that is claimed.” A.I.A. Holdings, S.A. v. Lehman Accordingly, this Court declines to reconsider its Order

Bros., 2000 WL 1538003, at *2 (S.D.N.Y. Oct. 17, 2000) granting the production of the unredacted documents.

(quoting Golden Trade, S.r.L. v. Lee Apparel Co., 1992

WL 367070, at *5 (S.D.N.Y. Nov. 20, 1992)); see also

Bowne of N.Y. City, Inc. v. AmBase Corp., 150 F.R.D. 465,

CONCLUSION

474 (S.D.N.Y. 1993) (explaining that a privilege log should

“identify each document and the individuals who were parties For the foregoing reasons, Defendants' motion for

to the communications, providing sufficient detail to permit reconsideration as set forth in Docket Entry No. [19] is

a judgment as to whether the document is at least potentially denied. Defendants are directed to produce the unredacted

protected from disclosure”). documents to Plaintiff's counsel forthwith.

All Citations

Not Reported in Fed. Supp., 2019 WL 1958310

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2008 WL 48613840

Here, Plaintiff has a legitimate privacy interest in information

Fa regarding her performance at a subsequent employer and,

KeyCite Yellow Flag - Negative Treatment therefore, has standing to bring her motion. See During v. City

Distinguished by United States ex rel. Ortiz v. Mount Sinai Hospital, Univ. of N.Y, No. 05 Civ. 6992(RCC)(RLE), 2006 U.S. Dist

March 11,2016 : □□ : >

SDNY, March TI, LEXIS 10133, at *3-4, 2006 WL 618764 (S.D.N.Y. Mar. 9,

2008 WL 4861840 2006), rev'd on other grounds, 2006 U.S. Dist. LEXIS 53684,

Only the Westlaw citation is currently available. 2006 WL 2192843 (S .D.N.Y. Aug. 1, 2006).

United States District Court,

S.D. New York. As for the merits of Plaintiff s motion, Rule 26(b)(1) of

the Federal Rules of Civil Procedure provides that “[p]arties

Camille MIRKIN, Plaintiff, may obtain discovery regarding any nonprivileged matter that

Vv. is relevant to any party's claim or defense.” “ ‘Relevance’

WINSTON RESOURCES, LLC, Defendant. for purposes of discovery, moreover, is synonymous with

‘germane’ and ... it should not be read as meaning ‘competent’

No. 07 Civ. 02734(JGK)(DF). or ‘admissible.’ “ Johnson yv. Nyack Hosp., 169 F.R.D.

| 550, 556 (S.D.N.Y.1996) (citation omitted). As Defendant

Nov. 10, 2008. argues, Mr. Gamble, Plaintiff's former supervisor at Response

Companies, may be able to testify as to Plaintiff's lack of

certain job skills, providing evidence that would be relevant

OPINION AND ORDER to a defense that Plaintiff was terminated for legitimate, non-

discriminatory reasons.

DEBRA FREEMAN, United States Magistrate Judge.

Even where the discovery sought is relevant, however, this

*1 In this employment discrimination action, plaintiff Court must weigh a party's right to obtain that discovery

Camille Mirkin (‘Plaintiff’) claims that her former against the burden imposed on the opposing party. During,

employer, defendant Winston Resources, LLC (“Defendant”) 2006 US. Dist. LEXIS 53684. at * 15. 2006 WL 2192843

unlawfully terminated her employment for reasons related (citing Fed.R.CivP. 26(b)(2), 26(c)). Further, the Court may

to, inter alia, her gender, her pregnancy, and her issue an order to protect a party from undue annoyance

Currently before this Court is a letter motion by Plaintiff or embarrassment. Fed.R.Civ.P. 26(c). In the circumstances

to quash Defendant's deposition subpoena of Christopher of this case, the Court finds that the burden imposed on

Gamble, Plaintiff's supervisor at a subsequent employer, — ptaintiff by Defendant's subpoena is slight and docs not

Response Companies, a company for which Plaintiff is also outweigh Defendant's right to obtain the information sought.

no longer working. (See Letter to the Court from Dominique First, Plaintiff could have reasonably expected that matters

N. Ferrera, Esq_., dated Oct. 10, 2008.) Plaintiff argues relating to her employment performance would be disclosed

that evidence regarding her job performance at Response in this litigation. During, 2006 U.S. Dist. LEXIS 53684, at *

Companies is irrelevant to the claims asserted in this action 16, 2006 WL 2192843 (“A litigant himself must reasonably

and that enforcement of the subpoena would negatively affect anticipate that his personal matters will be disclosed, while

her current and future employment prospects and subject a non-party having no stake in the litigation retains a greater

her to unnecessary annoyance and embarrassment. (See id.) expectation of privacy.”) (citation and internal quotations

Defendant, on the other hand, argues that Plaintiff lacks removed). Second, as Plaintiff is no longer employed by

standing to challenge the subpoena and that, in any event, the Response Companies, and, as Plaintiff does not claim that Mr.

discovery sought is relevant to its defenses in the action and Gamble is currently engaged in a job search on her behalf.

should be allowed. (See Letter to the Court from Melissa L. the cases on which she relies to demonstrate an undue burden

Morals, Esq., dated Oct. 24, 2008.) For the following reasons. arc distinguishable. Third, although Plaintiff states that she

Plaintiff's motion to quash is DENIED. continues to rely on Response Companies for job references,

the Confidentiality Agreement already in place in this action

As a threshold matter, a plaintiff has standing to quash could be extended to prevent Mr. Gamble and Response

a subpoena of a non-party where the plaintiff asserts a Companies from disclosing confidential information to

legitimate privacy interest in the information sought. See others, thereby mitigating the burden on Plaintiff. Finally, as

Chazin Lieberman, 129 F.R.D. 97, 98 (S.D.N.Y.1990).

of Plaintiff s termination from Defendant's employ are already circumstances, counsel arc directed to confer in good faith

known to many in Plaintiff's industry. For this reason, the regarding a modified discovery schedule and to submit such

additional embarrassment caused by Mr. Gamble's deposition a schedule to the Court for its consideration. Although the

would be marginal, at most. motion to quash the deposition of Mr. Gamble is denied,

that deposition should not go forward until the parties have

*2 The Court notes that, by agreement of the parties, reached agreement on its scheduling, or the Court has issued

discovery in this case is currently being held in abeyance a revised scheduling order.

pending the outcome of a mediation between them. The

Court, however, has recently received a letter from Plaintiff's SO ORDERED.

counsel, expressing concern that the scheduling of the

anticipated mediation has been delayed and suggesting that,

All Citations

to avoid further delay, discovery and the mediation should

now proceed “along parallel paths.” (Letter to the Court from Not Reported in F.Supp.2d, 2008 WL 4861840

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

2008 WL 3166662

1 The Court notes that, in its motion, Wyeth

Pa expressed concern that Sokol's first amended

KeyCite Yellow Flag - Negative Treatment

Distinguished by In re Velo Holdings Inc., Bankr.S.D.N.Y., June 12, privilege log may not be complete. When Sokol

2012 submitted attachment Nos. 1-8 to the Court, on

April 8, 2008, for an in camera review, he argued

2008 WL 3166662 that “the only fair issue for the Court is to

Only the Westlaw citation is currently available. determine if the numerous emails contained in

United States District Court, Exhibits 1-8 are covered by the common interest

S.D. New York. privilege,” despite knowing that Exhibits 1-8 were

not included in his first amended privilege log,

Anthony M. SOKOL, Plaintiff, based on which Wyeth's motion was made, and

V. without advising the Court of its plan to serve

WYETH, INC. and Wyeth Wyeth with its second amended privilege log that

Pharmaceuticals, Inc., Defendants. includes the list of items contained in Exhibits

1-8 the following day. Sokol's submission to the

No. 07 Civ. 8442(SHS)(KNF). Court, of the items claimed to be privileged, but

| not included in his privilege log that was in effect

Aug. 4, 2008. at the time of Sokol's response to Wyeth's motion,

and his failure to advise the Court about his plan

to serve Wyeth with his second amended privilege

MEMORANDUM AND ORDER log the day following his response to the motion, is

disconcerting.

KEVIN NATHANIEL FOX, United States Magistrate Judge.

To assist the Court in determining the defendants’ motion and

because of a discrepancy between the documents listed on

INTRODUCTION the plaintiff's first amended privilege log and the attachment

. . Nos. 1-8, submitted to the Court for its i review,

*1 Plaintiff Anthony M. Sokol (“Sokol”) brings this 0 NOON

. . . the Court directed the plaintiff, by an order, dated May 9,

action against Wyeth, Inc. and Wyeth Pharmaceuticals, . .

. ss 2008, to submit for its in camera review, all the documents

Inc. (collectively “Wyeth”’) for a violation of Section . . _ . .

ec listed on his first amended privilege log, and inform it whether

806 of the Sarbanes-Oxley Act (“SOA”) of 2002, 18 . a: .

. another privilege log exists, reconciling the discrepancy, and

U.S.C § 1514A, and unlawful employment practices under . . . _

. . ce os if so, to submit that comprehensive privilege log to the Court.

the Americans with Disabilities Act of 1990 (“ADA”), . .

On May 15, 2008, the plaintiff submitted to the Court, for its

42 U.S.C §§ 12101-12213, as amended. On March 24, . . . □□ .

. in camera review, his second amended privilege log, which

2008, the defendants made a motion for an order from . .

. . included attachment Nos. 1-8, previously submitted, and the

the Court, pursuant to Fed.R.Civ.P. 37, compelling the ee oy 93 : □□ .

. . packet of emails” stamped with page Nos. 1-201 (“e-mails

plaintiff to disclose documents reflecting communications: os

_. packet”). The plaintiff's second amended privilege log was

(1) between the plaintiff and non-party Mark D. Livingston deficient

(“Livingston”); and (2) among the plaintiff, his attorney and

ivi . ' ission incl Exhibit 1 . . □

Livingston. The defendants’ submission included Exhibit 10, v4, 99. 2008, the Court directed: (i) the plaintiff to

the plaintiff's first amended privilege log. On April 8, 2008, . □□ .

. . conform his second amended privilege log to Fed.R.Civ.P.

the plaintiff opposed the defendants’ motion contending: (a) _. . .

the defendants’ bis “pri ly broad:” (b) 26(b)(5S) and Local Civil Rule 26.2 of this court, serve it on the

1 ; .

© ees wees is prima facie overly OrOe ., defendants and file it with the court; and (11) the defendants to

the scope of the plaintiff's request is “overly burdensome; . . .

advise the Court what impact, if any, the conformed second

and (c) the communications sought are protected by a . . .

. . . amended privilege log has on their outstanding motion to

common interest privilege. In support of his opposition to the . .

. □ . compel. The Court also provided an opportunity for the

defendants' motion, the plaintiff submitted attachment Nos. i .

1-8, consisting of certain e-mail messages, for an in camera plaintiff to submit any response deemed warranted and the

defendants to submit any reply. On June 2, 2008, the plaintiff

review by the Court, claiming they are privileged. submitted his third amended privilege log, pursuant to the

May 22, 2008 order. The defendants advised the Court about

their motion to compel disclosure. The plaintiff filed his with Livingston, Sokol presented a first amended privilege

response and the defendants their reply. log, containing 72 items, to Wyeth. In his first amended

privilege log Sokol asserted the common interest privilege for

all items listed there, attorney-client privilege for some items

and the attorney work-product doctrine protection for some

BACKGROUND

items. On March 19, 2008, Sokol informed Wyeth that he and

*2 Sokol was employed by Wyeth as a manufacturing Livingston had filed jointly, on November 20, 2006, a false

scientist. Wyeth manufactured and distributed Prevnar, a claim action against Wyeth and that they are represented by

vaccine for prevention of childhood diseases. Sokol alleges, counsel from the law firm Davis, Cowell & Bowe LLP. On

in his complaint, that, in 2005, he raised concerns with April 9, 2008, Sokol disclosed to Wyeth its second amended

Wyeth about Prevnar's lack of compliance with the regulatory privilege log, containing 102 items, claiming the common

requirements of the Food and Drug Administration (“FDA”), interest privilege for most items, attorney-client privilege for

but Wyeth failed to report incidents related to its lack of some items and the attorney work-product doctrine protection

compliance to FDA or to investigate its conduct at issue. for some items. This motion followed.

Sokol alleges that his complaints to Wyeth, concerning

Prevnar's compliance issues, involved “misrepresentation

and omission about the quality of products and processes, DISCUSSION

contradictions in the statements [made] to shareholders

and consumers on [Wyeth's] website and [Securities and *3 The scope of discovery in a federal action is broad

Exchange Commission] filings, and failures to report or providing that, unless otherwise limited by court order, a party

concealments from [FDA].” Sokol alleges that, as a result of may obtain discovery regarding any nonprivileged matter that

his complaints concerning Prevnar, Wyeth retaliated against is relevant to any party's claim or defense. See Fed.R.Civ.P.

him by: (i) creating a hostile work environment for him; 26(b)(1). At the pretrial discovery stage of a litigation,

(ii) reducing his duties and research opportunities; (iii) relevancy, as it relates to information sought to be disclosed,

suspending him from employment; and (iv) terminating his is broadly construed and incorporates information which is

employment. Additionally, Sokol alleges, Wyeth terminated not admissible at trial if the information sought appears

him on the pretext of its concern with Sokol's disability, reasonably calculated to lead to the discovery of admissible

in violation of ADA. Wyeth denies Sokol's allegations and evidence. See Fed.R.Civ.P. 26(b) (1); Hickman v. Taylor, 329

asserts numerous affirmative defenses. U.S. 495, 507, 67 S.Ct. 385, 392 (1947) (“discovery rules are

to be accorded a broad and liberal treatment”), However, “[o]

Sokol is represented in this action by Thad M. Guyer, motion or on its own, the court must limit the frequency or

Esq. of T.M. Guyer and Ayers & Friends, P.C. On extent of discovery otherwise allowed by [the Federal Rules

December 24, 2007, Wyeth served the plaintiff with its of Civil Procedure] or by local rule if it determines that:

first request for the production of documents, seeking all

documents that evidence communications between Sokol and (i) the discovery sought is unreasonably cumulative or

Livingston from 2003 to the present relating to Wyeth or any duplicative, or can be obtained from some other source that

allegations in the complaint or any defenses to the allegations is more convenient, less burdensome, or less expensive;

in the complaint. Without producing any documents in

(ii) the party seeking discovery has had ample opportunity

response to Wyeth's request, Sokol objected that Wyeth's

to obtain the information by discovery in the action; or

request was “overly broad, unduly burdensome” and “it

requests documents outside of the possession and control of (iii) the burden or expense of the proposed discovery

Plaintiff. Additionally, Plaintiff objects to Defendant seeking outweighs its likely benefit, considering the needs of the

information protected by the common claims privilege.” case, the amount in controversy, the parties' resources, the

On February 29, 2008, Sokol submitted a privilege log, importance of the issues at stake in the action, and the

containing 25 items, to Wyeth, claiming common interest importance of discovery in resolving the issues.

privilege for all the items listed. On March 19, 2008, after

Sokol testified at his deposition during the administrative Fed.R.Civ.P. 26(b)(2)(C).

proceeding, conducted in connection with the underlying

by claiming that the information is privileged or subject to burden on Sokol because “there are no more than a few

protection as trial-preparation material, the party must: (i) dozen emails at issue and they have already been gathered by

expressly make the claim; and (ii) describe the nature of the Plaintiff in preparing his log.”

documents, communications, or tangible things not produced

or disclosed-and do so in a manner that, without revealing Sokol contends “[t]o demand all emails between Sokol and

information itself privileged or protected, will enable other Livingston ‘relating to Wyeth’ is prima facie overly broad.”

parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A); see Additionally, because these two former Wyeth's employees

also Local Civil Rule 26.2 of this court. A party may “sent hundreds of pages of emails to each other over the past

move for an order compelling disclosure or discovery, after several years, including in their capacities as co-relators in

a good faith attempt to resolve the issue with the party their qui tam action against Wyeth, the unbridled ‘relating

making disclosure or discovery, without court action, fails. to Wyeth’ scope is also overly burdensome, not just overly

See Fed.R.Civ.P. 37(a)(1). To prevail on a motion to compel, broad.” According to Sokol, “Wyeth has no fair basis under

a party objecting to a discovery request on the grounds that the relevance standard of Rule 26 to demand all Prevnar

the information sought is irrelevant, overly broad or unduly ‘related’ email” because this is the SOA employment case and

burdensome, must do more than ‘ “simply inton[e][the] not the false claim Prevnar case.

familiar litany’ that [requests] are burdensome, oppressive or

overly broad.” Compagnie Francaise D' Assurance Pour Le The Court finds that Wyeth's request for communications

Commerce Exterieur v. Phillips Petroleum, 105 F.R.D. 16, 42 between Sokol and Livingston relating to Wyeth, Prevnar,

(S.D.N.Y.1984). The resisting party “must show specifically Sokol's allegations or Wyeth's defense is reasonable because

how, despite the broad and liberal construction afforded the the documents sought appear to be facially relevant. Sokol

federal discovery rules, each [request] is not relevant or how provides no authority for the proposition that the mere

each [request] is overly broad, burdensome or oppressive, ... quantity of communication sought, i.e. “[h]undreds of

by submitting affidavits or offering evidence revealing the pages of e-mails,” is sufficient to demonstrate that Wyeth's

nature of the burden” Id. (internal citations omitted). A district discovery request is irrelevant, overly broad or unduly

court has broad discretion in deciding discovery issues. See burdensome. His conclusory statements that: (i) Wyeth's

Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir.2004). request is “prima facie overly broad” because Sokol and

Livingston exchanged hundreds of pages of e-mails to each

other over the past several years; and (ii) “almost anything

Relevancy and Scope they would email each other about would be broadly ‘related

*4 Wyeth contends Sokol's communications with to Wyeth,’ “ are not sufficient, by themselves, to establish

Livingston, from 2003 to the present, relating to Wyeth, a lack of relevance or that the discovery request is overly

Prevnar or any of Sokol's allegations or Wyeth's defenses, are broad or unduly burdensome. Similarly, absent evidentiary

relevant because a “critical issue in this case is whether, in support, Sokol's contention that “almost anything” Sokol and

making his complaints, Sokol reasonably and in good faith Livingston sent to each other via e-mail would be related to

believed that he was providing information that constituted Wyeth is speculative. The Court finds that Sokol failed in

securities fraud or violation of a law relating to fraud against establishing that Wyeth's request is irrelevant, overly broad

shareholders.” According to Wyeth, that Sokol discussed or unduly burdensome. Therefore, Sokol must disclose all

with Livingston what language was necessary to have his documents, erroneously listed in his privilege log, to which

complaint be deemed protected activity, for the purposes no privilege is claimed.

of SOA, demonstrates he was not genuinely interested in

raising concerns about securities fraud. Furthermore, Wyeth

contends, Sokol's contemporaneous communication with Attorney-Client Privilege

Livingston concerning his complaints is “highly relevant *5 “The attorney-client privilege is one of the oldest

to Sokol's state of mind, credibility, and other issues recognized privileges for confidential communications.”

in this action.” Wyeth asserts its document request is Swidler & Berlin v. United States, 524 U.S. 399, 403, 118

reasonable because it is “limited in timeframe, limited to S.Ct. 2081, 2084 (1998). The privilege, designed to facilitate

communications between Plaintiff and one other individual, openness and full disclosure between the attorney and the

and limited in scope to elicit documents relating to the client, shields from discovery advice given by the attorney as

682 (1981). The attorney-client privilege also protects from (N.D.Ohio 2008). The common interest doctrine precludes

disclosure “communications made to ceratin agents of an a waiver of the underlying privilege concerning confidential

attorney, including accountants hired to assist in the rendition communications between the parties “made in the course of

of legal services.” United States v. Schwimmer, 892 F.2d 237, an ongoing common enterprise and intended to further the

243 (2d Cir.1989). “A document is not privileged merely enterprise,” irrespective of whether an actual litigation is in

because it was sent or received between an attorney and client. progress. Schwimmer, 892 F.2d at 243; see Griffith v. Davis,

The document must contain confidential communication 161 F.R.D. 687, 692 (C.D.Cal.1995). Thus, the common

relating to legal advice.” Dep't of Econ. Dev. v. Arthur interest doctrine permits the disclosure of a privileged

Andersen & Co., 139 F.R.D. 295, 300 (S.D.N.Y.1991). A communication without waiver of the privilege provided the

party invoking the attorney-client privilege has the burden party claiming an exception to waiver demonstrates that the

of establishing: “(1) a communication between client and parties communicating: (1) have a common legal, rather

counsel, which (2) was intended to be and was in fact kept than commercial, interest; and (2) the disclosures are made

confidential, and (3) made for the purpose of obtaining or in the course of formulating a common legal strategy. See

providing legal advice.” United States v. Constr. Products Bank Brussels Lambert v. Credit Lyonnais, 160 F.R.D. 437,

Research, Inc., 73 F.3d 464, 473 (2d Cir.1996). The client's or 447 (S.D.N.Y.1995). “The need to protect the free flow of

the attorney's communications with the persons who act as the information from client to attorney logically exists whenever

attorney's agents and whose assistance is indispensable to the multiple clients share a common interest about a legal

attorney's work, are protected by the attorney-client privilege. matter.” Schwimmer, 892 F.2d at 243-44 (citation omitted).

See United States v. Kovel, 296 F.2d 918, 921 (2d Cir.1961); The common interest doctrine “is not an independent source

New York Civil Practice Law and Rules § 4548. of privilege or confidentiality.” In re Commercial Money

Ctr., Inc., Equipment Lease Litig. 248 F.R.D. at 536. If

The attorney-client privilege may be waived by the voluntary a communication is not protected by the attorney-client

disclosure of otherwise privileged material to a third party, privilege or the attorney work-product doctrine, the common

unless the third party is the client's agent. See In re interest doctrine does not apply. See id.

Application Pursuant to 28 U.S.C. § 1782, 249 F.R.D. 96,

2008 WL 919707, at *4 (S.D.N.Y.2008). “To avoid waiver, *6 Wyeth contends Sokol did not demonstrate that the

the proponent of the privilege must show, first, that the attorney-client privilege applies to each of the documents

client had a reasonable expectation of confidentiality in the claimed to be privileged. According to Wyeth, Sokol's

disclosure of the material to the third party, and second, assertion that Livingston was his counsel's “consultant”

that ‘disclosure to the third party was necessary for the should be rejected because “[i]t is insufficient for an attorney

client to obtain informed legal advice.’ “ Id. Moreover, “the to simply name one of his clients as a ‘consultant’ to another

inclusion of a third party in attorney-client communications client and thereby invoke the attorney-client privilege with

does not destroy the privilege if the purpose of the third respect to all of their communications.” Wyeth contends

party's participation is to improve the comprehension of the “this is not a situation where [Sokol's counsel] has retained

communication between attorney and client.” United States v. Livingston as an expert to assist him in understanding

Ackert, 169 F.3d 136, 139 (2d Cir.1999). Nonetheless, “[w]hat complex information his client is conveying to him that he

is vital to the privilege is that the communication be made in would not otherwise be able to understand.” Wyeth further

confidence for the purpose of obtaining legal advice from the contends: (i) Sokol did not provide evidence of an agreement

lawyer.” Kovel, 296 F.2d at 922. If what is sought is not legal between him and Livingston to pursue a joint legal strategy

advice but the services a third party offers or if the advice and keep their communications confidential; (ii) Sokol and

sought is the third party's and not the attorney's, the attorney- Livingston did not share a “common legal interest” because

client privilege does not apply. See id. their interests are not “identical” and their sharing a desire

to succeed in an action does not create common interest;

A “common interest” doctrine, erroneously called “common (iii) Sokol cannot establish that his communications with

interest privilege” or “joint defense privilege,” is an Livingston were in furtherance of a common legal enterprise;

exception to the general rule that voluntary disclosure of and (iv) Sokol waived his attorney-client privilege when he

confidential, privileged material to a third party waives voluntarily disclosed the allegedly privileged communication

any applicable privilege. See In re Commercial Money with Livingston to nurse Sheila Burke at Wyeth.

In advising the Court about the impact of the plaintiff's by e-mail will be protected by client-attorney privilege.”

third amended privilege log on its motion, Wyeth contends: Sokol contends that, after his counsel reviewed his grievances

(a) it already received from Sokol document page Nos. and Livingston's comments on them, he engaged Livingston

43-54; (b) all documents listed in Sokol's third amended as a “consultant” to his law firm ‘for the purposes of

privilege log that are non-privileged must be produced, to helping me re-write my complaint as to the technical

the extent they are responsive to its discovery requests; (c) and legal issues.” Subsequently, Sokol maintains, upon his

Sokol failed to establish privilege for e-mail communications counsel's instruction, Livingston provided him with further

between Livingston and an unidentified individual who “consulting” and “advice” and, in December 2005, he and

was a “potential” co-relator in the qui tam action and Livingston “began talking with attorneys about representing

between Livingston and David Graham (“Graham”), a former us in a qui tam False Claimes Act case.” Livingston submitted

client of the Government Accountability Project; (d) Sokol a declaration2 in opposition to Wyeth's motion, making

failed to establish the common interest doctrine applies almost identical contentions.

to protect Livingston's communication with Dan Donovan,

Senior Investigative Counsel for the Senate; (e) all e-mail 2 The copy of Livingston's declaration submitted to

communications between Sokol and Livingston that do not

the Court appeared to be incomplete. It contained

contain privileged information must be produced; and (f)

pages numbered 1 and 2 and a last, unnumbered

Sokol failed to establish that the common interest doctrine

page, which started with an incomplete sentence.

applies to his communications with Livingston. Wyeth also

It appeared that paragraph No. 7 was not included

contends that certain documents from Sokol's third amended

or was included partially. After the Court made

privilege log appear to be privileged and asks the Court

an inquiry with counsel to the plaintiff about the

to review them and determine whether they are indeed

missing portion of the document, counsel explained

privileged.

that a portion of paragraph No. 7 “somehow got off

from the top of page 3 in the transmission process

Sokol contends that he retained counsel in the first week of

from Mr. Livingston.... Consequently, I do not have

August 2005 and that, during his first telephone conversation

a declaration with Mr. Livingston's signature on

with counsel, counsel explained that his client Livingston had

the full page 3, as the page 3 on the declaration

become experienced with how SOA applies to their common

I filed and served on counsel is indeed cut off at

employer, Wyeth, concerning their common assignments to

the top.” Inasmuch as the document, as executed,

Wyeth's Prevnar vaccine production departments. According

was not served in its entirety on the defendant or

to Sokol, counsel explained that Sokol and Livingston

submitted to the Court, the Court will disregard

“had common issues, including regarding the ‘reasonable

the missing portion of paragraph No. 7, and will

belief’ requirements of [SOA]” and asked Sokol if he

consider Livingston's declaration in the incomplete

“would be willing to help or even to testify in [ ]

form in which it was served on the defendant and

Livingston's case.” Sokol contends that both cases involved

submitted to the Court.

“our reports of quality control issues in the manufacturing

of Prevnar vaccine” and Wyeth's “compliance with the *7 In his response to Wyeth's advising the Court of

same federal court Consent Decree.” Since both Sokol the impact of Sokol's third amended privilege log on the

and Livingston could testify in the other's case and share defendants' motion to compel, Sokol concedes he included

the evidence gathered through depositions and discovery, non-privileged documents on his third amended privilege

Sokol agreed to counsel's proposition. According to Sokol, log. However, according to Sokol, he only did so because

pursuant to counsel's arrangement, he and Livingston started those non-privileged documents “are implicated in the dispute

communicating about their respective cases in the second because they have been withheld based on relevance as well.”

week of August 2005. Sokol maintains that: (a) he and Additionally, Sokol argues, “[s]ome documents previously

Livingston intended their “communications to be protected and rightly withheld on the basis of relevance have now

by attorney-client privilege;” (b) his counsel “explained been migrated over on to the privilege log since our timely

this to [him];” and (c) Livingston reiterated what counsel objections on relevance await ruling.”

explained to Sokol when Livingston asked him: “Would

you include [counsel's] e-mail address in all of our e-mail

log as well as the parties' submissions, in connection with establishing that the attorney-client privilege applies is that

the defendants' motion to compel disclosure of documents. the communication is made in confidence for the purposes of

As noted above, the common interest doctrine is not an obtaining legal advice from the attorney and if what is sought

independent source of privilege or confidentiality and applies is not legal advice but “consultant's” services, or if the advice

only to a communication that is already protected by a sought is not that of the attorney but that of the “consultant,”

privilege. In his third amended privilege log, Sokol asserted the attorney-client privilege does not apply.

“[c]ommon interest privilege” for numerous items, without

indicating the nature of the privilege with respect to which *8 Sokol and Livingston were represented by the same

the common interest doctrine is asserted. For a significant attorney in their separate SOA litigations against Wyeth.

number of items Sokol asserted “[c]ommon interest privilege On August 18, 2005, Sokol's counsel engaged Livingston

and attorney client privilege.” The Court will assume, for the as a “consultant” to provide “technical expertise” in Sokol's

purpose of the instant motion, that Sokol's common interest case. Since Livingston was not an agent for Sokol or his

doctrine assertions, where alone, are based on the attorney- counsel, prior to August 18, 2005, the Court finds that

client privilege and will analyze them accordingly. the communications between Sokol and Livingston, prior

to August 18, 2005, are not protected by the attorney-

Sokol's communications with Livingston are not client privilege. The Court also finds that the attorney-client

communications between a client and his counsel. Generally, privilege was waived with respect to the communications

Sokol's communications with Livingston, a third party, between Sokol and his counsel, prior to August 18, 2005,

are not protected by the attorney-client privilege, unless because Sokol's counsel disclosed these communications to

Livingston acted as Sokol's agent, at the time communications another client, and that client was neither Sokol's nor his

were made. Sokol does not claim and the record does not counsel's agent at the time the communications were made.

demonstrate that Livingston acted as Sokol's agent. Sokol

also does not claim and the record does not demonstrate That Sokol's counsel engaged Livingston as a “consultant,”

that Livingston was an agent of his counsel whose assistance who will provide “technical expertise,” demonstrates that the

was indispensable for the attorney's work. Rather, Sokol purpose of the engagement was to assist Sokol's counsel

maintains: (i) Livingston was his counsel's “consultant;” with rendering legal advice to Sokol, not to formulate legal

and (ii) by including his counsel's e-mail address in strategy that would be common to Sokol and Livingston

his communications with Livingston he intended that his in their respective litigations, which would further their

communications with Livingston “be protected by attorney- common enterprise. The in camera review of the e-mail

client privilege.” communications, listed in Sokol's third amended privilege

log, demonstrates that no common interest arrangement

Sokol misunderstands the burden imposed on him in existed at any time between Sokol and Livingston, with

establishing the attorney-client privilege. It is the intent that respect to the instant litigation, and no common purpose

the communication be and is in fact kept confidential, not the existed to benefit from the guidance of their common

intent that the communication be protected by the attorney- counsel with respect to their independent SOA litigations.

client privilege, that Sokol must demonstrate. Sokol does not The communications between Livingston and Sokol were

make citation to any authority, and the Court finds none, for focused almost entirely on Sokol's case and Livingston's case-

the proposition that copying of the communications between which was in an advanced stage at the time communications

a client and a third party to the client's attorney triggers, by were made, was mentioned by Livingston occasionally, for

itself, the attorney-client privilege. Moreover, while Sokol the purpose of updating Sokol on its status, not to develop a

contends he intended his communications with Livingston common legal strategy. In fact, it does not appear, from the

to be confidential by assuring he included his counsel's e- communications before the Court, that Sokol ever inquired on

mail address in those communications, e-mail communication his own about the status of Livingston's SOA litigation or the

contained in e-mails packet page Nos. 1-201, spanning from legal strategy employed in that action. Accordingly, the Court

August 31, 2005, through July 2006, that were directly sent finds that the common interest doctrine does not protect the

to or received by Sokol and Livingston, were not copied to communications between Sokol and his counsel, disclosed to

Sokol's counsel and no explanation was provided by Sokol Livingston prior to August 18, 2005.

of the reason for omitting his counsel's e-mail address from

direct advisor to Sokol, as he explained in his communication to certain e-mail messages between Livingston and an

to Graham, dated October 1, 2005, 8:35 p.m., e-mails packet unidentified person, who was invited to join and allegedly

page No. 41: “I've been communicating with and advising “agreed to be co-realtor” in a separate false claims action

Anthony, along with legal counsel Thad Guyer.” In his e- Livingston and Sokol pursued jointly. However, in order for

mail to Sokol, dated December 5, 2005, 4: 56 a.m., e-mails the common interest doctrine to apply to a communication,

packet page No. 32, Livingston demonstrated his role of the attorney-client privilege must exist first. While the

direct advisor to Sokol when he stated: “I would advise attorney-client privilege applies to communications that are

you to do what you want to do.... I would at a minimum in furtherance of the common objective, between Livingston

make sure that ....“ However, for a communication to be and Sokol, as joint clients in their common false claims action,

protected by the attorney-client privilege, its purpose must Sokol makes no citation to any authority that extends the

be seeking or rendering legal advice from an attorney, not attorney-client privilege and the common interest doctrine to

from a consultant. Legal advice cannot be given by one who unidentified potential litigants. Therefore, the Court finds that

is not an attorney and no attorney-client privilege is afforded the communications involving unidentified persons are not

to any advice purporting to be legal from one who is not an protected by the attorney-client privilege.

attorney, even if that person was engaged by an attorney as

a “consultant” to provide “technical expertise.” Additionally, Sokol asserts the attorney-client privilege with respect to

although Sokol's counsel claimed to have engaged Livingston certain e-mail communications between Livingston and

as a “consultant” to provide him with “technical expertise” Livingston's counsel in his SOA action. One example is

in Sokol's case, except for counsel's e-mail communications the e-mail communication from counsel to Livingston, dated

to Sokol, dated August 30, 2005, Attachment No. 6, page March 8, 2006, 10:14 a.m., entitled “Oral Argument,” which

Nos. 1-5, no evidence exists in other e-mail communications summarizes for Livingston the oral argument conducted

before the Court that Sokol's counsel: (i) was aware of the in Livingston's action in his absence. Although this

communications between Sokol and Livingston that are not communication is between the counsel and his client, its

copied to him; (ii) read the communications that are copied content does not demonstrate that legal advice was sought or

to him; or (iii) acted on any communications between Sokol rendered. A summary by counsel of a public court proceeding

and Livingston. Therefore, the attorney-client privilege does for a client, without more, is not protected by the attorney-

not protect any confidential communications between Sokol client privilege. While such a summary could arguably fall

and Livingston, the purpose of which is not obtaining legal within the scope of the work-product doctrine, no such

advice from Sokol's counsel. protection was claimed by Sokol. The Court finds that e-mail

communications between counsel and Livingston, the content

*9 Sokol claims the attorney-client privilege applies to of which does not evidence that legal advice was sought or

numerous e-mail communications with Livingston, the bodies rendered, are not protected by the attorney-client privilege,

of which consist of the text “FYI,” accompanied by a and that, if not asserted to shield such communications from

document to which no privilege is claimed. One example disclosure, the work-product doctrine protection, as regards

of this is found on the e-mails packet page Nos. 178-182. them, is waived.

The body of that e-mail communication from Livingston to

Sokol, dated March 7, 2006, 8:26 p.m., states: “FYI Anthony. *10 Certain e-mail communications between Sokol and

Mark.” This text announces that another e-mail, consisting Livingston, alleged to be shielded from disclosure by the

of a certain report, is being forwarded for which no privilege attorney-client privilege, pertain to their joint litigation in

is claimed. The Court finds that asserting the attorney-client which they were represented by another attorney. Those

privilege in this manner is frivolous, because no basis exists confidential communications, as indicated in the Conclusion

for asserting the attorney-client privilege for this type of section of this Memorandum and Order, which were

communication. Accordingly, any communication consisting generated for the purpose of seeking or rendering legal advice

of the text “FYI,” or a similar announcement indicating through their common counsel, are protected by the attorney-

that a document is being forwarded with or included in client privilege.

that communication, and accompanied by that document, for

which no privilege is claimed, must be disclosed to Wyeth.

Work-Product Doctrine

unwarranted inquiries into the files and the mental the work-product doctrine, the common interest doctrine does

impressions of an adverse party's legal counsel. See Hickman, not apply. In re Commercial Money Ctr., Inc., Equipment

329 U.S. at 510-511, 67 S.Ct. at 393. The doctrine is set forth Lease Litig. 248 F.R.D. at 536.

in Rule 26 of the Federal Rules of Civil Procedure:

*11 Sokol asserted the work-product doctrine with respect

Ordinarily, a party may not discover documents and to two communications: (1) e-mails packet page Nos. 73-127,

tangible things that are prepared in anticipation of litigation consisting of an e-mail message from Sokol to Livingston,

or for trial by or for another party or its representative dated July 29, 2006, 5:37 a.m., the body of which consists

(including the other party's attorney, consultant, surety, of a forwarded e-mail message with an attached draft of the

indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), complaint in their common qui tam action, from the law clerk

those materials may be discovered if: (i) they are otherwise for their attorney to Sokol, dated July 28, 2006, 4:07 a.m.;

discoverable under Rule 26(b)(1); and (ii) the party shows and (2) e-mails packet page No. 169, consisting of an e-

that it has substantial need for the materials to prepare mail message from Livingston to Sokol, dated May 21, 2006,

its case and cannot, without undue hardship, obtain their 9:01 a.m., the body of which consists of (i) the words “FYI”

substantial equivalent by other means. and (ii) notification to recipient of the e-mail message that

various attachments are attached. However, the attachments

Fed.R.Civ.P. 26(b)(3)(A).

in connection with the communication on the e-mails packet

A document is created in anticipation of litigation “if ‘in light page No. 169 were not submitted to the Court.

of the nature of the document and the factual situation in the

particular case, the document can fairly be said to have been The Court finds that the communication identified as e-mails

prepared or obtained because of the prospect of litigation.” packet page Nos.73-127 is protected by the work-product

United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir.1998). doctrine, because it is a communication from Sokol and

The work-product doctrine does not protect “documents that Livingston's attorney and contains a draft of the complaint,

are prepared in the ordinary course of business or that would prepared in anticipation of their litigation against Wyeth,

have been created in essentially similar form irrespective of pursuant to the False Claims Act. Wyeth failed to show that:

the litigation.” Id. “Even if such documents might also help (a) the communication is otherwise discoverable; and (ii) it

in preparation for litigation, they do not qualify for protection has substantial need for it to prepare its case and cannot,

because it could not fairly be said that they were created without undue hardship, obtain its substantial equivalent by

‘because of’ actual or impending litigation.” Id. The burden other means.

is on the party claiming protection to establish that the work-

product doctrine applies. See Constr. Products Research, 73 Sokol claims, in his third amended privilege log, that the

F.3d at 473. The work-product doctrine protection is qualified e-mail communication identified as e-mails packet portion

and may be overcome if the party seeking disclosure makes of page No. 169, is protected by the work-product doctrine

“an adequate showing of substantial need for the document because it consists of “forwarding of research on Prevnar,

and an inability to obtain its contents elsewhere without undue compiled at request of counsel.” The Court finds no support

hardship.” Adlman, 134 F.3d at 1202-03. for the contention that the attachments, claimed to contain

research on Prevnar, were complied at the request of

Generally, the voluntary production of a document that counsel or that they were prepared because of the litigation.

is shielded from disclosure by the work-product doctrine Therefore, the e-mail communication from Livingston to

waives any claim by a litigant that the document may be Sokol, identified as the e-mails packet page No. 169, is not

withheld from disclosure under that doctrine. See U.S. v. protected by the work-product doctrine.

Rigas, 281 F.Supp.2d 733, 737 (S.D.N.Y.2003). However, the

common interest doctrine, which provides an exemption to

a waiver, also applies to communications protected by the CONCLUSION

work-product doctrine. See Pucket v. Hot Springs School Dist.

No. 23-2, 239 F.R.D. 572, 583 (D.S.D.2006); In re Steinhardt Therefore, as set forth above, the Court finds that the

Partners, 9 F.3d 230, 234-36 (2d Cir.1993); Transmirra following communications are shielded from disclosure by

Products Corp. v. Monsanto Chemical Co., 26 F.R.D. 572, the attorney-client privilege:

*12 • e-mail communication from Livingston to counsel,

• Attachment No. 5, e-mail communication from counsel dated March 8, 2006, 10:35 a.m., e-mails packet page Nos.

to Sokol, dated August 18, 2005, 1:16 a.m.; 164-165; and

• Attachment No. 6, page Nos. 1-5; • e-mail communication from counsel to Sokol, dated

August 11, 2006, 11:17 a.m., e-mails packet page No.

• Attachment No. 8, page Nos. 1-3; 185.

• e-mails packet page Nos. 23-24, 128-132; The Court also finds that the e-mails packet page Nos. 73-127,

are shielded from disclosure by the work-product doctrine.

• e-mail communication from Livingston to counsel, dated On or before August 8, 2008, the plaintiff shall disclose to

July 30, 2006, 4:58 p.m., e-mails packet Nos. 137-138 (but the defendants all remaining communications from his third

not the e-mail communication from an unidentified person amended privilege log.

to Livingston, dated July 30, 2006, 12:36 p.m., e-mails

packet page No. 138); SO ORDERED:

• e-mail communication from Livingston to counsel, dated

October 17, 2005, 3:11 p.m., e-mails packet page Nos. All Citations

141-142 and 144-145;

Not Reported in F.Supp.2d, 2008 WL 3166662

• e-mail communications from counsel to Livingston,

dated July 29, 2006, 7:11pm, and July 28, 2006,

14:01:06-0700(PDT), e-mails packet page Nos. 148-150;

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

1998 WL 74297 owned subsidiaries of the Samsung Corp., which is

Only the Westlaw citation is currently available. headquartered in Seoul, Korea. Samsung Co. Ltd.

United States District Court, S.D. New York. and the Samsung Corp. are collectively referred to

as “Samsung Korea.”

Anne DESMETH, Curator of

For the reasons set forth below, the motion is GRANTED, IN

Dikarpa N.V.S.A., et. al., Plaintiffs,

PART, with instructions to proceed in accordance with this

v.

opinion.

SAMSUNG AMERICA, INC. and NADJA

INTERNATIONAL TRADING CORP., Defendants.

No. 92 CIV. 3710(LBS)RLE. I. BACKGROUND

|

Feb. 20, 1998. In this action, plaintiffs, collectively Dikarpa N.V.S.A.5,

a company in bankruptcy liquidation pursuant to Belgian

law, Henri Karp and Myriam Karp–Majer, seek to

OPINION & ORDER recover damages based upon the alleged breach of the

February 2, 1989 agreement6 for the purchase of leather

ELLIS, Magistrate J. garments manufactured by Dikarpa, breach of certain

royalty agreements and alleged acts of fraud against the

*1 This matter was referred to the undersigned by Leonard

plaintiffs. Plaintiffs allege that Samsung America is liable

B. Sand, U . S.D.J. for general pretrial purposes on

for damages because of the nature of its relationship with

July 29, 1997. Before the court is plaintiffs' motion to

compel discovery from defendant, Samsung America, Inc.1 Nadja International Trading Corporation7, the company

with which Dikarpa contracted for the sale and distribution

Specifically, plaintiffs move pursuant to Federal Rules of

Civil Procedure 26, 33, 34 and 37 for an order: (1) compelling of leather garments .8 Establishing a longstanding and

Samsung America to answer interrogatories and to produce involved relationship between the various entities of Samsung

documents in response to requests propounded by plaintiffs; America, the Samsung Korea entities and Nadja is a central

(2) requiring that Samsung America supplement its responses component of plaintiffs' motion to compel discovery.

to all discovery requests propounded to date by plaintiffs

to include documents within the possession, custody or 5 Hereinafter referred to as “Dikarpa.”

control of Samsung Corporation Group2 and its Korean

6 Hereinafter referred to as “the 1989 agreement.”

subsidiary Samsung Company Limited3, and to include

information available to those entities4; (3) striking the 7 Hereinafter referred to as “Nadja.”

objections of Samsung America to said interrogatories and 8 Default judgment was entered against Nadja as to

requests for production of documents; (4) requiring Samsung

all claims in the amended complaint on the issue of

America to produce full, unredacted copies of documents

liability on June 20, 1996.

that it has produced in redacted form; (5) requiring Samsung

America to supplement its responses to discovery requests Samsung America has maintained that it is not liable to the

to include modifications thereto made by its attorneys in plaintiffs because it was not a party to the agreement between

correspondence; and (6) requiring Samsung America to pay Dikarpa and Nadja. Samsung America maintains that its role

plaintiffs' expenses of this motion, including attorneys' fees. was solely that of Nadja's financier. However, plaintiffs allege

that discovery to date has revealed that Nadja and Samsung

1 Hereinafter referred to as “Samsung America.” America were actually joint venturers or partners, and that

they acted together in damaging the interests of Dikarpa.

2 Hereinafter referred to as “Samsung Corp.”

A second major component of this motion is establishing the

3 Hereinafter referred to as “Samsung Co. Ltd.” close relationship between Samsung America and its parent

as Samsung Co. Ltd. This nexus is the basis upon which 2. Documents and information regarding business

Dikarpa seeks the production of documents from Samsung transactions between Samsung America and Nadja which

Korea by serving Samsung America in this action. are wholly unrelated to the business that Nadja did with

plaintiffs; and

3. Documents and information regarding Samsung

II. DISCUSSION America's business which are wholly unrelated to the

business that Samsung America did with Nadja.

A. Outstanding Discovery

*2 Plaintiffs allege that many responses to interrogatories Defendant Memorandum of Law in Opposition to Plaintiffs'

and document requests propounded to the defendant Samsung Motion to Compel at 2.12 However, these categories as

America are incomplete. The first set of interrogatories and defined by Samsung America are conclusory, in that they

requests for production of documents was served on June suggest that the responses sought are wholly unrelated to the

30, 1995. Procedural Declaration of Plaintiffs' Attorney Ted instant action. This court finds Samsung's characterizations

G. Semaya, ¶ 3.9 Several adjournments were agreed to of the requests erroneous, and finds that the documents, when

through 1995, during which time Jaffe & Asher, who had been properly defined, are discoverable.

representing both Samsung America and Nadja, withdrew

as counsel. Further agreements were made with Coudert 12 Hereinafter referred to as “Opp. Mem.”

Brothers, counsel presently representing Samsung America.

Proc. Decl. ¶¶ 6–10; Declaration of Ted G. Semaya executed The first category of disputed discovery consists of requests

May 22, 1997, ¶ 5.10 Since the time this motion was of the Samsung Korea entities regarding any transactions with

Nadja (or other companies which Lucien Padawer, Nadja's

noticed, Samsung America claims it has produced documents

President was the principal operator), and/or Dikarpa related

and supplemented answers to interrogatories. Declaration of

Samsung Attorney Richard A. DePalma executed on June 25,

to this action.13 This would include correspondence between

1997, ¶ 21.11 Samsung America does not dispute that its any or all of the parties to this action.

first responses to plaintiffs' first set of interrogatories were

served on February 23, 1996, several weeks after February 8, 13 Companies for which Padawer acted as the

1996, the last date either represented by Samsung America or principle operator are hereinafter referred to as

agreed to by plaintiffs. Nor does Samsung America contest “Padawer related companies/entities.”

that documents were not produced until April 19, 1996, two The second category of disputed discovery includes requests

months later still. Semaya Decl., ¶ 6. While Samsung America of Samsung America regarding its relationship over many

has represented that no documents were withheld on the basis years with Nadja, Padawer, and other Padawer related

of privilege or confidentiality, DePalma Decl. ¶ 10, it has companies in order to discern the extent of their relationship

in fact asserted one or both of these grounds in response to in the instant action. This category of discovery bears on the

various discovery requests. See DePalma Decl., Exhs. D, E disputed issue of Samsung America's liability in this case.

& F.

*3 The third disputed discovery category consists of

9 Hereinafter referred to as “Proc. Decl.” requests geared toward illuminating the extent of the alleged

knockoffs of Dikarpa styles, alleged to have been produced by

10 Hereinafter referred to as “Semaya Decl.” Samsung America, Nadja and/or Samsung Korea during and

11 Hereinafter referred to as “DePalma Decl.” after the period in which the 1989 agreement between Nadja

and Dikarpa was in effect.14 This category would include

In responding to this motion, Samsung America has grouped any documents in the custody of the Samsung Korea entities.

the requests to which it continues to object into three broad Since the basis for this action is the alleged breach of the

categories: 1989 agreement, the issue of knockoffs may bear directly on

a motive for the breach.

1. Documents in the care, custody and control of non-party

Samsung–Korea;

Nadja and Samsung America sold more Dikarpa Plaintiffs further allege that discovery has revealed that Nadja

styles to retail stores than they actually accepted was only the latest of several companies owned and controlled

from Dikarpa pursuant to the 1989 agreement. by Lucien Padawer, Nadja's president, that had entered into

Dikarpa was the only authorized manufacturer of agreements with and done business with Samsung America

its leather garments. Discovery has revealed that and Samsung Korea for many years. Semaya Decl., ¶ 22.

garments allegedly manufactured elsewhere were A document executed by these companies near the time of

labeled and sold as Dikarpa styles. the apparent conclusion of their relationship, a “Settlement

and Release Agreement,” defined the “Samsung Releasees”

Under the Federal Rules of Civil Procedure, the scope of to include Samsung America and Samsung Co. Ltd ., and

discovery extends to “any matter not privileged which is define the “Padawer Releasees” to include “Padawer, Foxrun,

relevant to the subject matter in the pending action, whether it Tiger Fox, Jadine, Nadja and Nadja II.” Semaya Decl., Exh.

relates to the claim or defense of the party seeking discovery 5. Plaintiffs seek further discovery to determine the extent and

or the claim or defense of any other party...” Fed.R.Civ.P. 26. complexity of the relationship between these companies, in

The phrase “relevant to the subject matter involved in the order to hold Samsung America liable on the 1989 agreement.

pending action” has been construed broadly to encompass any

matter that bears on, or that reasonably could lead to other *4 Samsung America has been doing business with Lucien

matters that could bear on, any issue that is or may be in the Padawer, Nadja's President, since as early as 1982, and with

case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, Samsung–Korea since the 1970's. Declaration of Henri Karp

98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). The party receiving executed on July 24, 1997, ¶ 4;15 Reply Declaration of Ted

a request must not only produce information which is

admissible as evidence, but also information which “appears

G. Semaya, executed on July 28, 1997, ¶ 7.16 Information

reasonably calculated to lead to the discovery of admissible regarding the relationship of the Padawer entities in the

evidence.” Martin v. Valley National Bank of Arizona, 140 years prior to the 1989 agreement may provide a clearer

F.R.D. 291, 300 (S.D.N.Y.1991). “Reasonably calculated” in picture of the true extent of the relationship between Nadja

Rule 26 means “any possibility that the information sought and Samsung America in this action. Henri Karp, Dikarpa's

may be relevant to the subject matter of the action.” Morse/ principal, claims that Padawer represented to him throughout

Diesel, Inc. v. Fidelity & Deposit Co., 122 F.R.D. 477, 449 their negotiations that Nadja and Samsung America were

(S.D.N.Y.1988). The contents of the discovery sought by the partners or joint venturers. See Semaya Decl. ¶¶ 35–46.

plaintiffs meets the liberal standard of Rule 26 and must be

produced. 15 Hereinafter referred to as “Karp Decl.”

16 Hereinafter referred to as “Semaya Reply Decl.”

B. The Nadja/Samsung Relationship

While this motion was pending, plaintiffs' attorney came

Samsung America contends that its involvement with Nadja

across copies of some documents that were in the custody

was only that of financier for the purchase of leather garments

of Nadja's present attorney. Plaintiffs' attorney supplemented

per the 1989 agreement with Dikarpa. Samsung America

this motion with some of these newly discovered documents

has therefore limited its discovery responses to documents

in an attempt to strengthen Dikarpa's argument that Samsung

and information related to its financing agreement with

America had withheld documents responsive to discovery

Nadja as Samsung America perceives they relate to the

requests. In response, S.K. Lee, who asserts that he was

1989 agreement. However, a key issue in this action is the

personally responsible for directing the search of documents

general nature of the relationship between Samsung America

relative to Samsung America's production of documents to

and Nadja. It bears on the basic, disputed issue of whether

plaintiffs in this case claims he is “able to say that I do not

Samsung America can be held liable on the claims against

recall ever seeing, prior to production by Mr. Semaya, the

it in this action. Plaintiffs allege that discovery thus far

documents marked as Exhibits 1(C), (D), (E), (F), (G), (H),

has disclosed that a primary function of Nadja was to be

& (I) ... None of these documents were contained in any

a joint venturer or partner with Samsung America to do

of the Samsung files I located during my search relative to

business with Dikarpa. Plaintiffs allege that Dikarpa's entire

plaintiffs' document requests in this case.” Declaration of S.K.

experience with the defendants, Nadja and Samsung America,

Lee, executed on January 14, 1998, ¶¶ 1, 11.17; See also

December 18, 1997, Exhs. C–I.18 Lee further asserts that he the further production of documents and information related

“personally conducted a reasonable search of Samsung's files to Samsung America and Nadja's business dealings both

for documents responsive to plaintiffs' discovery requests.” before and during the time the 1989 agreement was in effect.

Also that he “caused Samsung employees to make reasonable

searches for all documents responsive to plaintiffs requests.”

1. The Financing Agreement

Supp. Lee Decl., ¶ 4. While Lee protests, “[q]uite simply, the

Samsung America and Nadja entered into a financing

documents marked as Exhibits 1(C), (D), (E), (F), (G), (H), &

agreement for the purchase of the leather garments from

(I) to Mr. Semaya's Declaration have not been found in any of

Dikarpa in 1989 and 1990. Semaya Decl., Exh. 4. The

Samsung files we have located to date, “ he goes on to assert

agreements contain import financing arrangements, whereby

that “Samsung has made clear at all times that it objects to

Samsung America would take delivery of the leather clothing

producing certain categories of documents which it believes

and remit payment to Dikarpa upon delivery. Samsung

has no bearing on the issues in this case.” Id. at ¶¶ 25, 26.

America, however, claims that it did not know of the

February 1989 agreement between Dikarpa and Nadja until

17 Hereinafter referred to as “Supp. Lee Decl.” discovery in the instant case. Lee aff. ¶ 26. The documentary

18 evidence contradicts this assertion. For example, in May

Hereinafter referred to as “Supp. Semaya Decl.”

of 1989 Samsung America, through Marvin Winston, then

In support of their position, plaintiffs submit letters addressed Vice President of Samsung America's Textile Division,

to J.S. Lee, H.J. Kang, and Bruce Bloom at Samsung America corresponded directly to Karp regarding shipment dates and

from the accounting firm of Rashba & Pokart. Supp. Semaya letter of credit. Karp Decl., Exh. 3. A letter of credit was

Decl., Exh. C & D. These letters were written during the issued from Korea Exchange Bank by Samsung America

period of the 1989 agreement and allude to a “joint venture” in February 1989 to the order of Dikarpa. Id., Exh. 4. A

between Samsung America and Nadja. Also included is a fax, July 7, 1989 letter of credit describes Nadja as a “div [sic]

on Samsung America letterhead, from J.S. Lee at Samsung of Samsung America.” Id. Exh. 12. There are two shipping

America in New York to Padawer regarding the work done invoices from Dikarpa to Samsung America dated May 2,

by the accounting firm on behalf of their joint venture. Id. at 1989 and March 15, 1990. Id., Exh. 10. Samsung America

Exh. E. Lee does not challenge the authenticity of any of these even admits that it opened an irrevocable letter of credit to

newly discovered documents. See Supp. Lee Decl., ¶¶ 18–22. the order of Dikarpa at the request of Nadja for purchases

His assertion, therefore, that these documents were unknown pursuant to the 1989 agreement. See Lee Aff., ¶ 31. The

to him is highly suspect. court concludes that Samsung America's assertion that it

knew nothing about the 1989 agreement until discovery is not

*5 Samsung America asserts that while Nadja was credible.

continuously referred to either in terms of a “joint venture” or

as a “division of Samsung America,” these terms carried no Samsung America further claims that it never communicated

legal significance. Supp. Lee Decl., ¶ 8. Lee further asserts with Dikarpa directly regarding any transactions pursuant to

that since the documents were recovered by Dikarpa from the 1989 agreement. Lee aff. ¶¶ 29, 30. However, Samsung

Nadja's attorney, it was Nadja's and not Samsung America's America was invoiced for royalties payable to Dikarpa,

responsibility to produce them to the plaintiffs. This assertion pursuant to the 1989 agreement. Karp Decl., Exh. 11.

lacks merit. There is simply no authority under the rules of Discovery has disclosed correspondence from Dikarpa to

discovery to withhold responsive documents within a party's Samsung America regarding the late opening of the letter of

custody or control, claiming that someone else should have credit scheduled for November 15, 1989. Id., Exh. 13. There

produced them. are several faxes from Y.S. Lee of Samsung America to Karp

regarding problems with the letter of credit. Id., Exh. 14,15.

Discovery thus far has revealed that Samsung America kept Again, Samsung America's own documents demonstrate their

accounts for Nadja and Foxrun, a Padawer related company. claim to be untrue.

The entities shared offices, facilities and employees. Samsung

America maintained Nadja and Foxrun accounts on its *6 Though not explicit, the agreements bear some earmarks

computer system, and analyzed the consolidated budgets of of joint venture agreements. Under New York law, a joint

a joint venture are tantamount to those of a partnership. party, such as Dikarpa, which had no notice of the existence

See Gramercy Equities v. Dumont, 72 N.Y.2d 560, 565, 534 of the clause. See Royal Bank v. Weintraub, Gold & Alper, 68

N.Y.S.2d 908, 531 N.E.2d 629 (1988); Sherrier v. Richard, N.Y.2d 124, 128, 506 N.Y.S.2d 151, 497 N.E.2d 289 (1986)

564 F.Supp. 448 (S.D.N.Y.1983). In determining when a joint (acts of a partner in apparently carrying on the partnership

venture exists, the court has considered these factors: (1) business in the usual way are binding on the partnership

the intent of the parties to form a joint enterprise; (2) joint business unless that partner has no authority to act, and the

control of management and business; (3) sharing profits and person dealing with that partner knows that fact.).

losses; and (4) a combination of property, skill or knowledge.

Union Carbide Corp. v. Montell N.V., 944 F.Supp. 1119, 1132

(S.D.N.Y.1996) (quoting Sound Video Unlimited, Inc. v. Video 2. Knockoffs

Shack, Inc., 700 F.Supp. 127, 138 (S.D.N.Y.1988)). Plaintiffs allege that they have learned through discovery

that defendants engaged in the unauthorized manufacture of

The relationship of Samsung America to Nadja seems closer Dikarpa-style garments without payment of commission for

to that of a partner or joint venturer than simply to that of a such production or compliance with any of the provisions of

financier. The companies shared profits and losses. Semaya the 1989 agreement. See Semaya Decl. ¶¶ 48–54. Samsung

Decl. ¶ 46, Exh. 24, ¶ 12; Semaya Reply Decl., ¶ 8. The America has resisted nearly all discovery requests addressed

companies shared joint control and management of business to this knockoff issue, usually objecting to the information as

records and required joint agreement for delivery of garments irrelevant or burdensome. See Opp. Mem. at 19–20. Given

to customers. Semaya Reply Decl., ¶ 13(b). Samsung referred the abundance of documentary evidence which points to

to Nadja as a “Division of Samsung America.” Karp Decl. ¶ such unauthorized manufacture by the defendants and the

12. Nadja was also referred to as a “section within the Textile likelihood that such production could reveal a motive for

Department,” and as a “Profit Center 98” in a document the breach of contracts at issue in this litigation, the court

generated by Samsung America. Semaya Reply Decl. ¶ 13(c), finds this category of documents discoverable, despite their

Exh. 6. potential volume.

Samsung points to a clause in the 1989 Financing Agreement *7 The interaction among Samsung America, Samsung

between Samsung America and Nadja which provides: Korea and Nadja related to the unauthorized manufacture

of Dikarpa styles is critical to the analysis of whether the

defendants acted to the detriment of Dikarpa. Pursuant to

the 1989 agreement, Nadja was to be the sole distributor

It is expressly agreed and understood

of Dikarpa leather garments in North America. Dikarpa

by both parties that [Nadja] shall not

had production factories in Belgium, Turkey and Portugal.

be granted any right or authority to

While Nadja did have the right to produce Dikarpa

assume or to create any obligation or

styles elsewhere, it had to receive prior approval from

duty, express or implied, on behalf

Dikarpa. Semaya Decl., Exh. 23 (the 1989 Agreement).

of or in the name of Samsung or

Dikarpa claims that many garments were produced and

to bind Samsung in any manner

sold without its knowledge or approval. Plaintiffs have

whatsoever. Nothing herein shall be

discovered invoices, not produced by Samsung America,

construed to place Samsung and

which reveal that garments labeled “Casual Leather Games,”

[Nadja] in a relationship of partners,

a Dikarpa trademark, were scheduled for delivery to “Foxrun/

joint venture[rs] or principal agent.

Samsung” in New York by June 30, 1989. Supplemental

Reply Declaration of Ted Semaya, executed on January

20, 1998, Exh. 3.19 These garments were to be shipped

Semaya Decl., Exh. 4, ¶ 26. However, this paragraph is not

from the Republic of Korea. See Declaration of Jennifer

determinative on the partnership issue. Statements that no

Dowd, executed on January 20, 1998, ¶ 3. Without the

partnership is intended are not conclusive. If as a whole a

knowledge and approval of Dikarpa, such a scenario would

contract contemplates an association of two or more persons

be impossible under the 1989 agreement, which was in full

to carry on as co-owners of a business for profit, a partnership

force at the time, since Dikarpa had no factories in the

specifications of all Dikarpa styles shipped to Nadja and is unaware of the extent of the alleged knockoff production

Samsung America. Samples of the garments were also sent to and Samsung America has limited discovery to only garments

Nadja and Samsung America. Plaintiffs allege that Nadja and/ manufactured by Dikarpa, Samsung America should produce

or Samsung America provided these garment specifications to all relevant documents regarding unauthorized production of

Samsung Korea to create inferior quality knockoffs. Semaya Dikarpa garments from 1989 to the present.

Decl., ¶ 51. Plaintiffs believe that Samsung Korea was

producing much, and possibly all, of the garments ordered

pursuant to the agreement. See Memorandum in Support of C. Objections

this Motion at 24–25. Samsung America has interposed various general objections

to production of documents. It asserts that the discovery

19 Hereinafter referred to as “Supp. Semaya Reply r re eq leu ve as nts t, o( r1 () 3 )s ae re ek ovc eo rn lf yi d be rn ot ai da l a ni dn f bo ur rm da et ni so on m, e( .2 I) n aa dre d itn ioo nt

Decl.” it limits the temporal scope of its responses to the years 1989

Documents produced by Samsung America reveal that in to 1992. None of these positions have merit.

May 1989, it sold to Limited Stores 15,000 garments of

a Dikarpa style named “Wellington” into which it placed It is unclear what supplemental discovery, if any, took

labels identifying the garments as genuine Dikarpa garments. place between the parties since the filing of this motion.

Semaya Decl. ¶¶ 49–50, Exh. 25. Nadja had agreed to Some of Samsung America's responses seem to indicate that

purchase 40,000 units of Wellington, but ultimately took documents were turned over even though Samsung America

delivery of only 10,500. Semaya Decl. ¶ 49. Plaintiffs allege objected to their production. For example, regarding request

that the discrepancy between the number of garments actually number 60 of Plaintiffs' Second Request for Production of

purchased from Dikarpa and those sold to Limited Stores Documents, the exchange between the parties is as follows:

was filled with knockoffs produced by Samsung Korea.

During his deposition, Padawer admitted a production of

Dikarpa-style garments by Samsung Korea, on the order of Request # 60:

Samsung America, into which Foxrun labels were placed,

and which were sold to Macy's in the United States. Semaya

Decl. ¶ 53. Samsung America also produced a Samsung All letters of credit and all

Co. Ltd. garment production schedule disclosing production confirmations thereof concerning

by Samsung Korea of at least another 27,500 pieces of garments purchased by

Wellington, plus substantial amounts of other Dikarpa styles. Samsung[-]America, Nadja or Foxrun,

Semaya Decl. ¶ 54, Exh. 26. Dikarpa claims all of these or any of them.

productions were unauthorized.

This evidence warrants further investigation of Nadja, Response:

Samsung America and Samsung Korea's alleged production

of knockoffs. Not only would such unauthorized production

violate the 1989 agreement, but may also provide a motive Samsung objects to this request

for breach of the agreement, specifically the rejection of on the grounds that it seeks

Dikarpa garments upon delivery to Samsung America. confidential information. Samsung

Samsung America's attempt to limit its responses by limiting further objects to this request on

document production to information regarding Dikarpa is the grounds that it seeks information

clearly intended to skirt the very discovery intended by the and documents neither relevant nor

plaintiffs. reasonably calculated to lead to the

discovery of admissible evidence.

*8 While Dikarpa has made specific requests for invoices Samsung further objects to this request

and other documents related to sales and shipment of

garments from various transactions which came to light

and unduly burdensome. has produced documents responsive to requests, Samsung

America should create a log of such documents with their

Bates numbers. Samsung America may not limit the scope

Request to Supplement: of its responses to information related only to Dikarpa. Such

limitation foils the production of the very documents intended

by the requests. Any information regarding the relationship

This request seeking letters of between Samsung America and any Padawer related entity

credit and confirmations concerning —previous to, during, or after its involvement with Dikarpa

garments purchased by Samsung —is relevant to the issue of Samsung America's liability in

America, Nadja or Foxrun is relevant this case, particularly as such information relates to alleged

to the issue of knock [[[-]offs of the unauthorized manufacture and sale of Dikarpa styles.

Dikarpa-style garments as discussed *9 The asserted confidentiality of relevant business records

above and also relevant to the issue of is not a proper basis for refusing production. See generally

the course of dealing in which these In re Agent Orange Product Liability Litigation, 821 F.2d

entities generally engaged in the use 139 (2d Cir.1987). The parties could have entered into a

of letters of credit for the purchase stipulation of confidentiality, with the burden on Samsung

of garments, which bears directly America, the party claiming confidentiality, to establish

on the dispute between defendants good cause for such treatment in accordance with Rule

and plaintiffs regarding the terms of 26(c) of the Federal Rules of Civil Procedure. See Litton

the purchase agreements and related Industries v. Lehman Bros. Kuhn Loeb Inc., 122 F.R.D. 433,

letters of credit at issue in this action. 436 (S.D.N.Y.1988). Similarly, any assertions of privilege

should have been accompanied by a schedule of the withheld

documents, detailing the grounds of privilege asserted

for each document or refusal to respond. Having done

Response to Request to Supplement:

neither, Samsung America must now produce the requested

You have Samsung's response. information or documents. Furthermore, given the liberal

discovery rules, relevance is rarely a legitimate basis to

Semaya Decl., Exh. 30 at 22. withhold discovery. Samsung America has not provided any

details regarding its burdensomeness objection, thus the court

In responding to the instant motion, Samsung America will not address these objections.

supplements its response only by adding:

D. The Parent/Subsidiary Relationship

Subject to and without waiving any Rule 34 (a) of the Federal Rules of Civil Procedure provides

General or Specific Objections, to that a party may serve a request for the production of

the extent that Request No. 60 documents that are in the possession, custody or control of the

seeks information relating to Dikarpa, party upon whom the request is served. A party seeking the

Samsung has produced all responsive production bears the burden of establishing control. Camden

documents in its care, custody or Iron & Metal v. Marubeni America Corp., 138 F.R.D. 438,

control. Samsung has not withheld any 441 (D.N.J.1991).

documents on the basis of privilege or

confidentiality. In parent/subsidiary situations, the determination of control

turns upon whether the intracorporate relationship establishes

some legal right, authority or ability to obtain requested

DePalma Decl., Exh. E at 18. It is unclear when, if ever, documents on demand. Evidence considered by the courts

such responsive production took place. It is equally unclear includes the degree of ownership and control exercised by

whether by its response Samsung America means to indicate the parent over the subsidiary, a showing that the two entities

that it has withheld responsive documents based on its operate as one, demonstrated access to documents in the

at 442. It is unfathomable how Samsung America now asserts that it

did not even know about the 1989 agreement until discovery

Plaintiffs rely on Kossoff v. Samsung Company, Ltd., 123 in this case, since it was financing the payments for all of the

N.Y. Misc.2d 177 (Sup.Ct.1984), in asserting that Samsung purchases pursuant to the agreement, as well as took delivery

America and Samsung Korea have a sufficient nexus. In of garments shipped directly from Dikarpa. Further, Samsung

that case, the New York court held that it had jurisdiction America and Nadja prevailed on Dikarpa to use Samsung

over Samsung Company Limited based on evidence that Corp. as a supplier for materials such as snaps, buttons and

Samsung Company Limited did business in New York hanging tags for the garments that Dikarpa designed and

through Samsung America.20 Samsung America denies that manufactured for sale to Samsung America. Karp Decl., ¶ 17.

there is a sufficient nexus and states conclusorily that it has During this period of time, Samsung Corp. and Nadja were

no “legal right, authority or ability to obtain documents or allegedly negotiating a deal with Karp to take over a majority

other information from Samsung Corp.,” and “it is important share of Dikarpa. See Semaya Decl., Exh. 2 (Complaint), ¶¶

to note that the relationship between Samsung Corporation 65–70.

and Samsung America has changed dramatically in the nearly

two decades since the evidence in Kossoff was produced by Samsung America argues that control of documents can only

the parties.” Further, it states, “[t]his court is looking at a far be found in situations that warrant piercing the corporate veil.

different company from the one Kossoff looked at many years Gerling Int'l. Ins. Co. v. Commissioner of Internal Revenue,

ago.” Lee Aff., ¶¶ 56–57, 59. 839 F.2d 140 (3d Cir.1988); Glaxo, Inc. v. Boehringer

Ingelheim Corp., 1996 WL 710836 (D.Conn. Oct.8, 1996),

20 Samsung Co. Ltd. is the predecessor company to aff'd 1997 WL 355339 (Fed. Cir. Jan 4, 1997). However, these

cases clearly list additional alternate grounds where control

the Samsung Corporation Group.

can be established. They include, (1) where there is access

The facts, however, fail to denote any concrete difference to documents when the need arises in the ordinary course

between the relationship of Samsung Corp. and Samsung of business. Glaxo, at *3, Camden Iron, 138 F.R.D. at 442;

America at the time of the Kossoff case and now. Indeed, and (2) where the subsidiary was the marketer and servicer

some of the alleged differences do not exist. For example, of the parent's product in the United States. Id. Other court

while Lee asserts that Samsung America and Samsung Corp. have found that the control analysis under Rule 34 of the

do not share any officers or employees, J.Y. Chung appears Federal Rules of Civil Procedure does not require that a party

to be both Senior Vice President of Samsung America and have actual managerial power over the foreign corporation,

General Manager of Samsung Corp. Compare Lee Aff., ¶ but rather that there be close coordination between them.

48 with Semaya Decl., ¶ 23, Exh. 5. In addition, Lee never Afros, S.P.A. v. Krauss–Maffei Corp., 113 F.R.D. 127, 129

explains when or how the relationship between Samsung (D.Del.1986).

America and Samsung Corp. changed. Samsung Corp.'s most

recent annual report and financial statement describe the There is much evidence contrary to Samsung America's

structure of the company as “numerous companies under claim that entities of Samsung Korea were not involved

common management and control.” Semaya Decl., Exh. 6. in the transactions between Padawer related companies and

This language tracks that used by the Kossoff court in finding Dikarpa. Documents already produced by Samsung America

that Samsung Co., Ltd. was subject to the jurisdiction of in discovery originate from Samsung Korea. See Semaya

the New York court. See Kossoff, 123 Misc.2d at 178, 474 Decl. Exh. 12, 15. Such a pragmatic approach, based upon

N.Y.S.2d 180. This court finds Kossoff both persuasive and common sense notions of control, is employed in many

analogous to the present situation. decisions in this area, rather than limiting the analysis to

specific facts of preceding decisions. Samsung Corp. holds

*10 In response to documents requests by the plaintiffs, itself out as one of the world's largest companies comprised of

Samsung America has produced documents that clearly came 340 offices and facilities in 66 countries. Semaya reply Decl.

from Samsung Korea. See Semaya Decl., Exh. 26. These ¶ 5, Exh. 1 (page from 1995 Samsung Annual Report). The

documents bear the letterhead of Samsung Co. Ltd. As Samsung companies may not hold themselves out as united

evidenced by their production, such documents are in the for some purposes, but unconnected for others.

actual possession of Samsung America.

obligation to have done so, Lee states that he sent plaintiffs' (2) documents and information in the possession, custody and

discovery requests to Samsung Korea. He further states control of Samsung Korea entities;

that Samsung Corp. has stated that it does not posses

any documents or information responsive to plaintiffs' (3) documents and information regarding Samsung America's

requests. Lee Aff. ¶ 55. Again, this assertion contradicts the prior dealings with Nadja and other Padawer related

documentary evidence discovered in this case thus far. companies, including information regarding suits brought

against these companies resulting from their relationship; and

(4) documents and information related to manufacture

III. CONCLUSION of Dikarpa style garments, not manufactured by Dikarpa

pursuant to the 1989 agreement, from 1989 to the present.

*11 IT IS ORDERED that Samsung America reevaluate

its discovery responses in view of this opinion, and produce

Samsung America should produce the discovery within 20

every document responsive to the plaintiffs' discovery

days of the date of this order. Plaintiffs should submit to the

requests. Samsung America should also forward a copy of

court, within 15 days of receipt of the defendants' responses,

this opinion to the various Samsung Korea entities, along with

a summary report of any outstanding requests. The court will

copies of all discovery requests propounded by plaintiffs to

reserve the issue of fees and expenses until that time.

date. Discovery responses and document production should

include:

All Citations

(1) any information and documents withheld on the basis of

privilege, confidentiality, burdensomeness or relevance; Not Reported in F.Supp., 1998 WL 74297

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