Greenberg v. Bovis Lend Lease, Inc. et al

Filing 73

Minute Entry for proceedings held before Magistrate Judge Marilyn D. Go. Appearances by J. Lambros and M. O'Neill for plaintiff; W. Sunkel for defendant Bovis; J. Green for defendant Local 14; J. Saccomano, Jr. for defendant Regional; R. Briton for defendant LVI. For the reasons discussed at the conference and in the attached order, defendants' 51 Motion to Quash is granted in part and denied in part. Plaintiff's 67 Motion to Compel is granted only to the extent allowed. Pla intiff's 72 Motion to Extend Discovery is granted, and the deadline for fact discovery is extended to July 13, 2012. The schedule for expert discovery remains unchanged. The Court will schedule a further conference following the parties' expert designations. See attached. (Albertsen, Joanne)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARSHALL GREENBERG,
Plaintiff,
- against -

ORDER
CV 2010-0897 (JBW)(MDG)

BOVIS LEND LEASE, INC., et al.,
Defendants.
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This order sets forth and elaborates on rulings made at a
conference held on June 15, 2012 with the parties.
Bovis' Motion to Quash
Defendant Bovis Lend Lease, Inc. ("Bovis") moves to quash a
subpoena served by plaintiff on Dr. Robert Goldstein, who examined
plaintiff following an incident in which plaintiff presented to Ray
Master, Bovis' Site Safety manager, a note describing his depression
and his suicide attempt.

Ct. doc. 51 at 1-2.

Bovis argues that Dr.

Goldstein is protected from discovery as a non-testifying expert
retained in anticipation of litigation and with the dual purpose of
providing input for the business decision whether to let plaintiff
return to work.
The work product doctrine provides qualified protection to
documents and other tangible things "prepared in anticipation of
litigation or for trial."

Fed. R. Civ. P. 26(b)(3); see generally

Hickman v. Taylor, 329 U.S. 495 (1947).

The privilege "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) (quoting Hickman, 329

U.S. at 510-11).

The party claiming work product protection

"bears the burden of establishing that the documents in question
were 'prepared principally or exclusively to assist in
anticipated or ongoing litigation.'"

Adlman, 134 F.3d at 1202

(quoting United States v. Construction Prods. Research, Inc., 73
F.3d 464, 473 (2d Cir. 1996)).
In determining whether material was prepared "in
anticipation of litigation," the proper inquiry is "whether the
documents were prepared 'because of' existing or expected
litigation."

Adlman, 134 F.3d at 1198.

Documents are "deemed

prepared in 'anticipation of litigation' if 'in light of the
nature of the document and the factual situation in the
particular case, the document can fairly be said to have been
prepared or obtained because of the prospect of litigation.'"
Strougo v. Bea Assocs., 199 F.R.D. 515, 520-21 (S.D.N.Y. 2001)
(quoting Adlman, 134 F.3d at 1202).

In other words, "the

pertinent question is what would have happened had there been no
litigation threat – that is, whether the party seeking work
product protection would have generated these documents if it
were acting solely for its business-related purposes." William A.
Gross Const. Assoc. v. Am. Mfrs. Mut. Ins. Co., 262 F.R.D. 354,
360 (S.D.N.Y. 2009).
The deposition testimonies that Bovis cites in its
supplemental submission clearly indicate that Bovis sought the
examination of plaintiff only after learning of plaintiff's
suicide attempt.

Ct. doc. 65 at 3.

Senior executive Dennis

Prude testified that Ray Master was concerned about plaintiff's
stability and ability to run the elevator car after being
presented with plaintiff's note.

Prude had discussions with

Master, James Abadie, former Principal-in-Charge of Bovis' New
York office, and the Human Resources director about plaintiff.
2

Id. 3, 13-14, 18.

Subsequently, Abadie participated in making "a

decision . . . in conjunction with Bovis' counsel, to conduct a
'medical evaluation of plaintiff."

Id. at 3, 5.

Abadie

confirmed that the purpose of the examination was to "make sure
that there wouldn't be an incident with [plaintiff] running the
car and that he was okay."

Id. at 3, 10.

Under these

circumstances, this Court finds that an evaluation would likely
have been conducted "in the ordinary course of business . . .
irrespective of litigation."

Adlman at 1202.

The fact that

plaintiff had filed a state-court action against Bovis shortly
before the evaluation does not change this Court's analysis,
since "[t]he mere relation of documents to litigation does not
automatically endow those documents with privileged status."

See

The Shinnecock Indian Nation v. Kempthorne, 652 F.Supp.2d 345,
362 (E.D.N.Y. 2009).

It is understandable that Bovis would seek

legal advice before taking any employment action involving the
plaintiff, but this does not change the fact that the examination
conducted by Dr. Goldstein arose from business concerns.
Although work product protection does not extend to Dr.
Goldstein's examination, the legal advice and related discussion
are confidential attorney-client communications and shall be
protected, as discussed below.
This Court also finds significant that Dr. Goldstein is a
medical doctor and, as such, is "presumably less involved in
trial strategy than other types of experts, so that revealing
[his] opinions and findings is not likely to intrude on counsel's
thought process." Castillo v. Western Beef, Inc., 2005 WL 3113422
at *3 (E.D.N.Y. Nov. 21, 2005).

In addition, Federal Rule of

Civil Procedure 35 entitles a party to depose an examining
physician and to receive any notes, data or other documents
created in connection with the examination.
3

See Fed.R.Civ.P.

35(b)(1); see also Castillo at *2-*3.

This entitlement survives

even where the examination was conducted before litigation
commenced and is consented to by the parties without a court
order. Id.
Therefore, defendant Bovis must produce all of Dr.
Goldstein's notes that relate to plaintiff and any recording of
the examination.

This is without prejudice to the right of Dr.

Goldstein and Bovis to redact any protected attorney-client
communications.

However, plaintiff's request for a deposition of

Dr. Goldstein is denied.

Since Bovis does not claim that its

actions were impacted by the results of the examination, this
aspect of discovery would be tangential to the issues raised in
this lawsuit.

This ruling is without prejudice to plaintiff

seeking a deposition if he is able to produce additional and
substantial evidence that the testimony of Dr. Goldstein would be
relevant to the merits of this action.

See Travelers Cas. & Sur.

Co. v. J.D. Elliott & Co., 2004 WL 2339549 at *2 (S.D.N.Y. 2004)
(a court may limit the scope of discovery of an expert's work
where expert may be retained solely for business and later for
litigation or may be performing ordinary work and litigation work
simultaneously).
Plaintiff's motion to compel
Plaintiff moves to compel Bovis to respond to plaintiff's
second set of discovery demands which essentially concern
information as to investigations and proceedings regarding
criminal activity of Bovis (Interrogatory 1, 3) and James Abadie
(Interrogatory 2).

Plaintiff points to the fact that "Bovis had

paid a $5 million fine to the City of New York in connection with
an inflated overtime scheme involving public projects" and thus
seeks the discovery because the work site at issue in this action
4

was a public project.

Ct. doc. 67 at 1.

Plaintiff states that

he seeks the information both for impeachment purposes and to
challenge Bovis' affirmative defense that it has a valid antidiscrimination policy.

As to the latter, plaintiff argues that

information concerning Bovis's fraudulent billing and other work
site practices pertaining to minority business enterprises may
yield information which casts doubt on Bovis' claim of good faith
in complying with antidiscrimination statutes and show its
"cynical attitude toward workplace diversity."

Ct. doc. 17 at 3.

This Court agrees that plaintiff may be entitled to
discovery of information to impeach the credibility of the Bovis.
Courts have recognized that prior act evidence may be used for
impeachment and need not be substantiated in the form of
convictions or disciplinary action.

See, e.g., Terra Capital

Assocs. v. Verizon Pennsylvania, Inc., 2010 WL 2509975 at *13
(W.D.N.Y. June 16, 2010); Linares v. Mahunik, 2008 WL 2704895 at
*3 (N.D.N.Y. July 7, 2008) ("Past complaints against [defendant]
regarding retaliation could be used by plaintiff to attack
[defendant's] credibility or to impeach his testimony").
Discovery may be permitted even as to allegations that were not
substantiated.

Pacheco v. City of New York, 234 F.R.D. 53, 54

(E.D.N.Y. 2006).
In Interrogatory 1, plaintiff seeks information as to
misconduct by employees of Bovis relating to the Deutsche Bank
demolition project.

This request is too broad and reaches beyond

potential impeachment evidence admissible under Federal Rule of
Evidence 608(b).

This Rule permits inquiry into a "witness'

character for truthfulness . . . on cross-examination of the
witness (1) concerning the witness' character for truthfulness or
untruthfulness . . . "

Fed. R. Evid. 608(b) (emphasis added).

As framed, Interrogatory No.

1 is not limited to impeachment
5

evidence of potential witnesses and parties.

Thus, this

Interrogatory is limited to Bovis employees who are involved in
this case as witnesses and employees or who may be viewed as
acting on behalf of the New York office of Bovis in a managerial
capacity -- in other words, employees who could be considered
Rule 30(b)(6) witnesses.

Moreover, because impeachment evidence

may be used only to attack a witness's character for
truthfulness, "racketeering" is hereby removed from the list of
crimes covered by the discovery requests at issue.
"Racketeering" may encompass crimes not pertaining to
untruthfulness and the underlying crimes concerning truthfulness
are already covered by the interrogatory.
Since plaintiff is in the best position to determine which
of Bovis' employee may be witnesses at trial, plaintiff shall to
produce a list by June 20, 2011 identifying all employees he
believes may be called at trial.

Defendant Bovis must respond by

June 29, 2011 with a list identifying the investigations,
charges, complaints and criminal, civil or administrative
proceedings relating to allegations relating to the Deutsche Bank
demolition project that have been pursued against the designated
employees.

Since the information is sought for impeachment of

the employees, Bovis does not need to produce every document in a
pending proceeding, but must produce the documents which are
sufficient to disclose the nature and extent of allegations
against a prospective Bovis employee witness, including charging
documents, target letters and complaints.

Such documents must be

produced as promptly as possible beginning June 29, 2012 and, if
necessary, on a rolling basis thereafter.
In Interrogatory 3, plaintiff requests discovery of all
criminal convictions of Bovis.

Courts routinely allow discovery

of criminal convictions of a party or witness.
6

See 8 Charles

Alan Wright, et al., Federal Prac. & Proc. § 2015 (3d ed.).
Under Federal Rule of Evidence 609, "convictions relating to
dishonesty and false statements are admissible without regard to
the degree of punishment or the Rule 403 balance."

Edwards v.

Ctr. Moriches Union Free School Dist., 2009 WL 604928 at *2
(E.D.N.Y. Mar. 9, 2009).

However, plaintiff's interrogatory is

too broad since it lacks a temporal or geographical limitation.
Since the claims in this case concern the treatment of plaintiff
by the New York office of Bovis, Interrogatory No. 3 is hereby
limited to the criminal convictions of Bovis relating to conduct
of its New York office.

In addition, given the presumptive 10

year limit in Rule 609(b), the interrogatory is further limited
to discovery of convictions that are not more than 15 years old,
as calculated under that Rule.
Finally, as to scheduling, the parties are reminded that
they are expected to cooperate in scheduling the remaining
depositions and accounting for the time difference with respect
to any deposition of deposition of Ray Master.

SO ORDERED.
Dated:

Brooklyn, New York
June 21, 2012
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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