Jeanty v. Sciortino

• Court: District Court, N.D. New York
• Decided: March 24, 2025
• Docket: 6:22-cv-00319
• Status: Unknown

Opinion

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

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