McNamee v. Clemens
ORDER denying 172 Motion to Set Aside and finding as moot 171 Motion to Stay. See attached. Ordered by Judge Sterling Johnson, Jr on 11/25/2014. (Droubi, Luna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
BRIAN G. MCNAMEE,
09 CV 1647 (SJ) (CLP)
EMERY CELLI BRINCKERHOFF & ABADY LLP
75 Rockefeller Plaza
New York, NY 10019
Richard D. Emery
Debra L. Greenberger
Attorneys for Plaintiff
RUSTY HARDIN & ASSOCIATES, LLP
1401 McKinney Street
Houston, Texas 77010
Jeremy T. Monthy
Attorneys for Defendant
JOHNSON, Senior District Judge:
Pursuant to Federal Rule of Civil Procedure 72(a) (“Rule 72(a)”),
Defendant Roger Clemens (“Defendant” or “Clemens”) moves to modify or set
aside the November 18, 2014 order (“November 18 Order”) issued by United
States Magistrate Judge Cheryl L. Pollak (“Judge Pollak” or the “Magistrate”).
The order relates to Plaintiff Brian McNamee’s (“McNamee” or “Plaintiff”)
Motion to Compel Clemens to produce communications with Clemens’s sports
agent Randal Hendricks (“Hendricks”) (“Document Request 55”) and all
communications with Clemens’s public relations strategist Joe Householder
(“Householder”), as well as Householder’s firm, Public Strategies, Inc.
(“Document Request 57”).
Clemens also moves for a stay of the November 18
Order pending the Court’s decision on his Rule 72(a) motion.
The Court has reviewed the November 18 Order as well as the Clemens’
submission and finds that Judge Pollak’s findings were neither clearly erroneous
nor contrary to law. For the following reasons, Defendant’s Motion is DENIED.
This is the second time this Court has been forced to engage in the arbitrary
review of Magistrate Judge Pollak’s discovery orders. Familiarity with the facts
and circumstances underlying the November 18 Order, the instant motions, and the
procedural posture of this action is assumed and will only be recounted in brief.
On August 2, 2013, McNamee filed a Motion to Compel Clemens to
produce documents responsive to Document Request 55 and Document Request
57. On August 13, 2013, Judge Pollak issued an order requiring Clemens to
produce the contested documents for in camera review. On August 18, 2013,
Clemens submitted a privilege log together with documents “arguably” responsive
to Document Request 55 and Document Request 57. (Order of Jan. 30, 2014 (Dkt.
No. 103) at 5.)
Judge Pollak was initially forced to review of over 900 pages of e-mails
that were responsive to Document Request 55 and Document Request 57 (the
“First Hendricks/ Householder Production”).
On September 18, 2013, Judge
Pollak issued an Order finding, among other things, that: (1) Defendant had
waived his claims of attorney-client privilege and work-product protection, and (2)
the privilege log belatedly produced to the Court was inadequate because the
information on the log was insufficient to enable the Court to determine whether
the documents were in fact privileged.
After Clemens filed a Motion for
Reconsideration, which this Court denied, Clemens filed a Rule 72(a) Motion to
Set Aside. On April 2, 2014, this Court denied that motion, finding he had waived
privilege with respect to those documents. He then moved this Court for a stay of
the order requiring him to turn over the documents to McNamee. That, too, was
denied. He then filed a petition in the United States Court of Appeals for the
Second Circuit for a writ of mandamus, which met a similar fate.
But that was not the end of Defendant’s pattern of concealment. After all
of that litigation, it turned out Clemens did not fully respond to Document Request
55 and Document Request 57. Clemens informed Judge Pollak that he possessed
thousands of additional pages of documents that he claims were also privileged
and that he failed to produce the first time around. This second production was
provided to Judge Pollak for in camera review on April 29, 2014 (the “Second
Hendricks/Householder Production”). On November 18, 2014, Magistrate Judge
Pollak found, among other things, that Clemens’ waiver of privilege extended to
this second production as well.
She ordered the documents turned over by
November 26, 2014.
On the morning of November 25, 2014, a day before Clemens was due to
turn over these documents to McNamee, the Court received two motions filed by
Clemens: a Motion to Modify or Set Aside Judge Pollak’s Order pursuant to
Federal Rule of Civil Procedure 72(a) (Dkt. No. 173), and a Motion to Stay the
Production pending the Court’s resolution of the Rule 72(a) motion. (Dkt. No.
Defendant’s Motion to Set Aside the November 18 Order need not detain
us long, as it is yet another eleventh hour attempt by a recalcitrant and
indefatigable Defendant to delay the inevitable.
On April 2, 2014, this Court found that “it was not clearly erroneous or
contrary to law for Judge Pollak to order the production of the remaining
documents on the grounds that any privileges were waived.” (Order of Apr. 2,
2014 (Dkt. No. 110) at 13) (emphasis added).
As the Second Hendricks/
Householder Production is part of the remaining documents responsive to
Document Requests 55 and 57, Judge Pollak was correct to have again found
privilege waived. Clemens defies logic by arguing that the initial privilege log
related to the First Hendricks/Householder Production is unrelated to the Second
All of the documents are responsive to the
same discovery requests and are the subject of the same motion to compel from
which this sea of motions flowed.
Accordingly, it was not clearly erroneous or contrary to law for Judge
Pollak to order the production of the remaining documents on the grounds that any
privileges were waived.
The Court has considered the remaining arguments and finds that they are
Defendant has taken so many bites of this apple that—days before the feast
of Thanksgiving—all that is left is a rotten core. The Motion to Set Aside is
denied. He must turn over the documents pursuant to Judge Pollak’s November 18
Order by 5:00 pm on November 26, 2014 or the consequences warned of in this
Court’s November 19, 2014 (Dkt. No. 167) will become a reality.
The Motion to Stay is denied as moot.
November 25, 2014
Brooklyn, New York
Sterling Johnson, Jr, U.S.D.J.
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