287 Franklin Avenue Residents' Association et al v. Meisels et al

Filing 106

MEMORANDUM AND ORDER re 82 Appeal of Magistrate Judge Decision to District Court, filed by Jon Sasmor. For the reasons set forth in the attached Memorandum and Order, Sasmor's appeal 82 of Judge Orenstein's January 11, 2012 discovery ru lings is granted in part and denied in part, as follows: (i) by June 7, 2012, all defendants shall identify, in writing under oath, the individual(s) involved in the preparation of defendants' tax returns; (ii) by June 7, 2012, the Trust Defenda nts shall identify, in writing under oath, all other persons involved in the Ronald Henry Land Trust, Henry Management, LLC, and 65 2B Management, Inc., now or in the last three years, the nature of their involvement, and the commencement and termina tion dates of their involvement in those entities; (iii) by June 7, 2012, the Trust Defendants shall identify, in writing under oath, the individual(s) who negotiated and/or drafted the deed granting 287 Franklin Avenue from Ronald Henry to the Ronal d Henry Land Trust, the agreement and declaration of trust, and the assignment of beneficial interest; and (iv) all other rulings made by Judge Orenstein during the status conference on January 11, 2012 are affirmed. Counsel for the Trust Defendants shall serve a copy of the instant Memorandum and Order on Jon Sasmor and file a certificate of service on ECF by May 25, 2012. Ordered by Judge Kiyo A. Matsumoto on 5/24/2012. (Winterkorn, Margaret)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
287 FRANKLIN AVENUE RESIDENTS’
ASSOCIATION, et al.,
Plaintiffs,

MEMORANDUM AND ORDER
11-CV-976(KAM)(JO)

-againstCHAIM MEISELS, et al.,
Defendants.
-------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff Jon Sasmor (“Sasmor”) has objected to
certain discovery rulings made by Magistrate Judge James
Orenstein on January 11, 2012.

Sasmor seeks discovery of (i)

documents relating to any offers made by defendants to purchase
real property and submissions made to banks in connection with
any such offers; (ii) any information in defendants’ 2009 and
2010 tax returns and schedules pertaining to rental income and
the identity of defendants’ tax preparers, as well as
defendants’ W-2 and 1099 forms; (iii) the identity, conduct, and
dates of involvement of all individuals involved in certain
entities in the last three years; (iv) all categories of
documents kept by certain entities in the ordinary course of
business, as well as the location and custody of those
documents; (v) any information regarding possible common family
relationships among defendants and the late Grand Rabbi Moses

Teitelbaum or Garcia Iron Works, Inc.; (vi) the identity and
involvement of any persons involved in the conveyance of 287
Franklin Avenue from Ronald Henry to the Ronald Henry Land
Trust, and the purpose of that conveyance; and (vii) all
documents related to 287 Franklin Avenue, 175 Thompkins Avenue,
Peter Henry, agreements between defendants and Ronald Henry, and
arrangements made for utilities, taxes, and violations at 287
Franklin Avenue.

(See ECF No. 82, Appeal of Magistrate Judge

Decision to District Court by Jon Sasmor, filed 2/17/2012
(“Sasmor Appeal”).)
The court has reviewed the parties’ submissions and
the transcript of the status conference before Judge Orenstein
on January 11, 2012.

For the following reasons, Sasmor’s appeal

of Judge Orenstein’s discovery rulings is granted in part and
denied in part, as set forth below.
BACKGROUND
The facts relevant to the present request for review
are as follows.

On March 1, 2011, Jon Sasmor, proceeding pro

se, and the 287 Franklin Avenue Residents’ Association and other
individuals, represented by counsel, (collectively with Sasmor,
“plaintiffs”) commenced the instant action.
Complaint filed 3/1/2011.)

(ECF No. 1,

On July 7, 2011, plaintiffs filed an

amended complaint against Chaim Meisels, Chaim Goldberger, Isaac
Teitelbaum, Abraham Schneebalg, Ronald Henry, Nathan Smith, Josh
2

Bosch, Peter Henry, Louis Garcia, Joel Kaufman, Brian Dudjak,
Samuel Emmanus, the Ronald Henry Land Trust, Henry Management
LLC, People Choice Real Estate, LLC, Kings County Realty Corp.,
and other unknown individuals (collectively, “defendants”).
(See ECF No. 41, First Amended Complaint (“Am. Compl.”) filed
7/7/2011.)

Defendants Chaim Goldberger, Isaac Teitelbaum,

Abraham Schneebalg, the Ronald Henry Land Trust, and Henry
Management, LLC, collectively, are referred to herein as the
“Trust Defendants.”

Defendants Louis Garcia, Joel Kaufman, and

Kings County Realty Corp., collectively, are referred to herein
as the “Garcia Defendants.”

Defendants Nathan Smith, Josh

Bosch, and People Choice Real Estate, LLC, collectively, are
referred to herein as the “People Choice Defendants.”

The

amended complaint alleges that defendants, who are individuals,
real estate companies that employed those individuals, and
related trusts, violated the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), including predicate acts of
extortion, money laundering, and mail, wire, and bank fraud, and
violated New York State consumer protection laws.

(Id. ¶¶ 30-

40, 97-186, 220-66.)
On August 18, 2011, Judge Orenstein issued a
scheduling order setting deadlines for discovery.
Scheduling Order dated 8/18/11.)

(ECF No. 52,

On October 1, 2011, plaintiffs

served all defendants with interrogatories and document
3

requests.

(See ECF No. 57-1, Plaintiffs’ First Interrogatories

and Document Requests to [Trust Defendants], dated 9/30/2011
(“Requests to Trust Defs.”); ECF No. 64-1, Plaintiffs’ First
Interrogatories and Document Requests to [Garcia Defendants],
dated 9/30/2011 (“Requests to Garcia Defs.”); ECF No. 64-2,
Plaintiffs’ First Interrogatories and Document Requests to
[People Choice Defendants], dated 9/30/2011 (“Requests to People
Choice Defs.”).)

Although defendants’ responses were due within

30 days after being served with the discovery requests, none of
the defendants responded within the allotted time.

(See ECF No.

57, Letter Motion to Compel Responses [from Trusts Defendants],
filed 11/16/2011 (“Mot. to Compel Responses from Trust Defs.”);
ECF No. 64, Letter Motion to Compel Responses [from Garcia
Defendants and People Choice Defendants], filed 11/28/2011
(“Mot. to Compel Responses from Garcia & People Choice Defs.”).)
See also Fed. R. Civ. P. 33(b)(2), 34(b)(2) (providing that a
party must respond to interrogatories and document requests
within 30 days after service thereof).

Thereafter, the parties

engaged in numerous discussions regarding plaintiffs’ discovery
requests.

(See ECF No. 57-3, Emails to and from Attorney David

Stern, dated Nov. 3, 8, 11, and 13, 2011 (“Stern E-mails”) at 2;
ECF No. 57-4, Letter from Sasmor to Attorney David Stern, dated
11/11/2011 (summarizing the correspondence between Sasmor and
counsel for the Trust Defendants between November 2 and November
4

11, 2011); ECF No. 64-6, Emails to and from Attorney Marc Illish
(“Illish E-mails”); ECF No. 64-3, [Garcia Defendants’] First Set
of Responses to Plaintiffs’ Interrogatories and Document
Requests (“Garcia Defs. Unexecuted Draft Responses”); ECF No.
64-4, [People Choice Defendants’] First Set of Responses to
Plaintiffs’ Interrogatories and Document Requests (“People
Choice Defs. Unexecuted Draft Responses”).)
On November 16 and November 28, 2011, respectively,
Sasmor filed motions to compel defendants to respond to
plaintiffs’ outstanding interrogatories and document requests.
(See ECF No. 57, Mot. to Compel Responses from Trust Defs; ECF
No. 64, Mot. to Compel Responses from Garcia & People Choice
Defs.)
On December 5, 2011, all of the parties appeared
before Judge Orenstein to discuss their outstanding discovery
disputes.
12/5/2011.)

(ECF No. 66, Minute Entry for Proceedings held on
Judge Orenstein ordered the parties to meet and

confer in a further attempt to resolve or narrow their discovery
disputes, and to submit a joint status report no later than
December 15, 2011 identifying any outstanding disputes.

(Id.)

Judge Orenstein further directed defendants to promptly respond
and produce records in response to those interrogatories and
document requests to which they had no reasonable objection.
(Id.)
5

On January 11, 2012, Judge Orenstein held another
status conference (the “January 11, 2012 status conference”),
where the parties discussed and Judge Orenstein ruled on each
disputed discovery request one-by-one.

(See ECF No. 73, Minute

Entry for Proceedings held on 1/11/2012; ECF No. 98, Transcript
of Civil Cause for Conference before the Honorable James
Orenstein, dated 1/11/2012 (“1/11/2012 Tr.”).)
On January 25, 2012, Sasmor filed a motion seeking
reconsideration of several rulings made by Judge Orenstein at
the January 11, 2012 status conference.

(See ECF No. 76, Motion

for Reconsideration, filed 1/25/2012 (“Sasmor Motion for
Reconsideration”).)

The Trust, Garcia, and People Choice

Defendants opposed Sasmor’s motion for reconsideration.

(See

ECF No. 77, Response to Motion for Reconsideration [by Trust
Defendants], filed 1/30/2012; ECF No. 78, Response to Motion for
Reconsideration [by Garcia and People Choice defendants], filed
1/30/2012.)

On February 3, 2012, Judge Orenstein denied

Sasmor’s motion for reconsideration in its entirety, explaining
that:
[Sasmor] presents no argument or fact in
support of the motion [that] satisfies the
strict standard for such relief pursuant to
Local Civil Rule 6.3. I grant the
defendants’ request to make their
supplemental disclosures in accord with my
earlier discovery rulings no later than
February 10, 2012.

6

(Order dated 2/3/2012.)
On February 17, 2012, Sasmor timely appealed to this
court Magistrate Judge Orenstein’s denial of reconsideration and
the underlying discovery rulings.

(See ECF No. 82, Sasmor

Appeal.)
DISCUSSION
I.

Legal Standards
A.

Standard of Review
A district court may set aside a magistrate judge’s

order concerning non-dispositive matters only if the order is
“clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).

Fed. R. Civ. P. 72(a);

A magistrate judge’s pretrial

discovery rulings are generally considered non-dispositive and
are reviewed under the “clearly erroneous or contrary to law”
standard of review.

See Thomas E. Hoar, Inc. v. Sara Lee Corp.,

900 F.2d 522, 525 (2d Cir. 1990) (finding that matters involving
pretrial discovery are generally considered “nondispositive of
the litigation” and thus are subject to the “clearly erroneous
or contrary to law standard” on review by a district court).

An

order is clearly erroneous if the reviewing court, based on all
the evidence, “is left with the definite and firm conviction
that a mistake has been committed.” United States v. Isiofia,
370 F.3d 226, 232 (2d Cir. 2004) (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985)).

An order is contrary to law
7

“when it fails to apply or misapplies relevant statutes, case
law, or rules of procedure.” Dorsett v. Cnty. of Nassau, 800 F.
Supp. 2d 453, 456 (E.D.N.Y. 2011) (quoting Catskill Dev., L.L.C.
v. Park Place Entm’t Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002)).
“Pursuant to this highly deferential standard of
review, magistrate[] [judges] are afforded broad discretion in
resolving discovery disputes and reversal is appropriate only if
their discretion is abused.”

Dunkin’ Donuts Franchised Rests.,

LLC v. 1700 Church Ave. Corp., No. 07-CV-2446, 2009 U.S. Dist.
LEXIS 24367, at *3 (E.D.N.Y. Mar. 24, 2009) (citation and
internal quotation marks omitted).

Thus, “a party seeking to

overturn a discovery ruling [by a magistrate judge] generally
bears a heavy burden.”

Travel Sentry, Inc. v. Tropp, 669 F.

Supp. 2d 279, 283 (E.D.N.Y. 2009) (citation and internal
quotation marks omitted).
B.

Scope of Permissible Discovery
Pursuant to Federal Rule of Civil Procedure 26(b)(1),

“[p]arties may obtain discovery of any nonprivileged matter that
is relevant to any party’s claim or defense—including the
existence, description, nature, custody, condition, and location
of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter.”
R. Civ. P. 26(b)(1).

Relevance under Rule 26 is “construed

Fed.

broadly to encompass any matter that bears on, or that
8

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, 351 (1978); see also Thomas E. Hoar, Inc.
v. Sara Lee Corp., 882 F.2d 682, 687 (2d Cir. 1989) (holding
that “the broad scope of discovery delimited by the Federal
Rules of Civil Procedure is designed to achieve disclosure of
all the evidence relevant to the merits of a controversy”).
Further, “[r]elevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.”

Fed. R. Civ. P.

26(b)(1).
Although the scope of discovery is broad, it is not
unrestricted.

Federal Rule of Civil Procedure 26(b)(2)(C)

requires a district court to limit or deny discovery, sua sponte
or upon motion, when:
(i) the discovery sought is unreasonably
cumulative or duplicative, or can be
obtained from some other source that is more
convenient, less burdensome, or less
expensive; (ii) the party seeking discovery
has had ample opportunity to obtain the
information by discovery in the action,; or
(iii) the burden or expense of the proposed
discovery outweighs its likely benefit,
considering the needs of the case, the
amount in controversy, the parties’
resources, the importance of the issues at
stake in the action, and the importance of
the discovery in resolving the issues.

9

Fed. R. Civ. P. 26(b)(2)(C).

“The party seeking the discovery

must make a prima facie showing, that the discovery sought is
more than merely a fishing expedition.”

Evans v. Calise, No.

92-CV-8430, 1994 U.S. Dist. LEXIS 6187, at *1 (S.D.N.Y. May 11,
1994); see also United States v. Int’l Bus. Mach. Corp., 66
F.R.D. 215, 218 (S.D.N.Y. 1974) (the burden is on the moving
party to establish relevance); Tottenham v. Trans World Gaming
Corp., No. 00 Civ. 7697, 2002 U.S. Dist. LEXIS 11313, at *3-4
(S.D.N.Y. June 21, 2002) (“Discovery . . . is not intended to be
a fishing expedition, but rather is meant to allow the parties
to flesh out allegations for which they initially have at least
a modicum of objective support. . . .

Discovery requests cannot

be based on pure speculation or conjecture.”).

Therefore, in a

motion to compel, it is incumbent upon the moving party to
provide the necessary connection between the discovery sought
and the claims or defenses asserted in the case.
II.

Application
A.

Offers to Buy Real Property
First, Sasmor seeks to compel defendants to respond to

the remainder of plaintiffs’ Interrogatory and Document Request
No. 1 (“T1/G1/P1”), which provides, in relevant part:
State the street address of all real property that,
within the last three (3) years, you have made an
offer to buy on behalf of yourself or someone else, or
submitted any paper to any bank; state the result of
the offer or submission; and provide all documents in
10

your possession, custody, or control concerning each
offer or submission. 1
(ECF No. 82-1, Sasmor Appeal Ex. 1.)
At the January 11, 2011 status conference before Judge
Orenstein, Sasmor asserted that information regarding offers
made by defendants to purchase real property was relevant to
establish a pattern of racketeering.
at 5.)

(ECF No. 98, 1/11/2012 Tr.

Sasmor further argued that defendants’ offers to buy

real property would be relevant to determining the “scope of
[defendants’] enterprise” and therefore “would help the Court to
examine the scope of injunctive relief that might be
appropriate.”

(Id. at 7.)

By way of example, Sasmor explained

that “if there were an offer to buy another property in which
the defendants were working together with the banks’ lawyer and
the property was in foreclosure, . . . that might further
[plaintiffs’] arguments . . . that there should be an injunction

1

Plaintiffs’ original T1/G1/P1 to all defendants stated, in full:
State the street address of all real property that,
within the last five (5) years, you have owned or
claimed an interest in or equity in or managed or
made repairs to or collected rents from or occupied
or sold or rented or collected a commission from or
advertised or used as a registration address or
mailing address, and describe your involvement in
each property. State the street address of all real
property that, within the last five (5) years, you
have made an offer to buy on behalf of yourself or
someone else or submitted any paper to any bank,
state the result of the offer or submission, and
provide all documents in your possession, custody, or
control concerning each offer or submission.

(ECF No. 57-1, Requests to Trust Defs. at 4; ECF No. 64-1, Requests to Garcia
Defs. at 4; ECF No. 64-2, Requests to People Choice Defs. at 4.)

11

[prohibiting] the defendants [from] continuing to operate in the
real estate business.”

(Id. at 7-8.)

Judge Orenstein found

that the information requested regarding offers to buy real
property was not relevant and denied Sasmor’s request.

(See id.

at 4-8, 48.)
Sasmor seeks review of Judge Orenstein’s ruling,
arguing that offers to purchase real estate and submissions made
to banks in connection with such offers are relevant to proving
whether defendants engaged in bank fraud, one of the predicate
racketeering acts alleged in the amended complaint.

(ECF No.

82-1, Sasmor Appeal Ex. 1; see also ECF No. 41, Am. Compl.
¶¶ 162-69.)

Although Sasmor does not allege that plaintiffs

were injured by any alleged bank fraud, he nevertheless asserts
that information that may prove bank fraud is discoverable to
show that defendants engaged in a pattern of racketeering
activity.

(ECF No. 82-1, Sasmor Appeal Ex. 1.)

Sasmor further

argues that discovery of the “entire scope of the Defendants’
enterprises and patterns of racketeering activity” is necessary
to determine an appropriate remedy in this case.

(Id. n.2.)

“The locus of the line between discovery reasonably
calculated to lead to admissible evidence and the proverbial
fishing expedition is determined in large measure by the
allegations of the pleading.”
(S.D.N.Y. 1989).

Unger v. Cohen, 125 F.R.D. 67, 71

Here, the only allegation of bank fraud in the
12

amended complaint that could possibly relate to offers by
defendants to purchase real property is the speculative
assertion that “[d]efendants may operate an additional
fraudulent scheme by which Defendants Louis Garcia and/or Kings
County Realty Corp. conduct broker price opinions” that produce
artificially low estimates for properties that other members of
the alleged racketeering enterprise “may have been attempting to
purchase through a short sale.”

(ECF No. 41, Am. Compl. ¶ 169.)

Sasmor has not met his burden of making a prima facie
showing that the discovery sought is relevant.

Plaintiffs’

allegation that “[d]efendants may operate an additional
fraudulent scheme” involving property that defendants “may have
been attempting to purchase through a short sale,” (id.
(emphases added)), provides an insufficient basis on which to
support what appears to be a fishing expedition.

Given the

clearly speculative nature of the allegations, Sasmor may not
“use discovery to uncover evidence that might support an as yet
unasserted . . . claim.”

Palumbo v. Shulman, No. 97 Civ. 4314,

1998 U.S. Dist. LEXIS 11467, at *15 (S.D.N.Y. July 24, 1998)
(“Discovery is not to be used as ‘a hunting license to conjure
up a claim that does not exist.’” (quoting Avnet, Inc. v. Am.
Motorists Ins. Co., 115 F.R.D. 588, 592 (S.D.N.Y. 1987)));
accord Am. Commc’ns Ass’n. v. Ret. Plan for Emps. of RCA Corp.,

13

488 F. Supp. 479, 484 (S.D.N.Y. 1980), aff’d, 646 F.2d 559 (2d.
Cir. 1980).
Further, setting aside the issue of the sufficiency of
plaintiffs’ bank fraud claim in light of Ashcroft v. Iqbal, 556
U.S. 662 (2009) and Federal Rule of Civil Procedure 9(b), which
requires fraud claims to be pled with particularity, the court
finds Sasmor’s request to be overbroad.

The request is

unrestricted as to location or type of property, and is not
reasonably tailored to seek information that would support
plaintiff’s allegations of a possible scheme to purchase
properties for which defendants supplied artificially low broker
price opinions. 2
Accordingly, Judge Orenstein’s ruling denying Sasmor’s
request for discovery of offers to purchase real property and
submissions made to banks in connection with such offers is
affirmed because it is neither clearly erroneous nor contrary to
law.

2

To the extent that Sasmor seeks information regarding appraisals and broker
price opinions prepared by defendants, he has sought and received such
information from the Garcia Defendants through Interrogatory and Document
Request No. 19 (“G19”), which asked the Garcia Defendants to “describe your
work conducting appraisals, broker price opinions, and other real estate
valuations . . . .” (ECF No. 64-1, Requests to Garcia Defs. at 12.) During
the January 11, 2012 status conference, Judge Orenstein ordered the Garcia
Defendants to certify that they had provided all information regarding
appraisals and broker price opinions. (See ECF No. 98, 1/11/2012 Tr. at 5657.)

14

B.

Tax Returns and Related Documents
Second, Sasmor seeks to compel defendants to respond

to the portion of plaintiffs’ Interrogatory and Document Request
No. 5 (“T5/G5/P5”) asking defendants to:
Provide the federal and state tax returns,
including all attachments and W-2 and 1099
and Schedule K-1 forms, for each of the last
five (5) years for you and for every trust,
corporation, LLC, partnership, or entity
that you identified in Interrogatory No. 3
above, and identify who prepared each of
these tax returns.
(ECF No. 57-1, Requests to Trust Defs. at 6; ECF No. 64-1,
Requests to Garcia Defs. at 6; ECF No. 64-2, Requests to People
Choice Defs. at 6; see also ECF No. 82-2, Sasmor Appeal Ex. 2.)
At the January 11, 2012 status conference, Sasmor
asserted that he sought defendants’ W-2 and 1099 tax forms
because they would show “what rental income, if any, is being
reported on the tax returns” and would allow him “to trace who
was paying for these investments.”
at 19.)

(ECF No. 98, 1/11/2012 Tr.

Sasmor argued that the statement of defendants’ wages

set forth on their W-2 forms “may go towards the distribution .
. . of the rental income” by, for example, showing whether one
defendant paid the proceeds of its rental income to another
defendant.

(Id. at 20.)

Sasmor acknowledged, however, that W-2

forms would not show that any individual received the proceeds
of a particular check, but rather “would show whether [the

15

individual] received income in general.”

(Id. at 20-21.)

Sasmor also argued that a 1099 form issued by a bank to one of
the defendants would “help [plaintiffs] identify the financial
accounts.”

(Id. at 21.)

In response to an inquiry from Judge

Orenstein, Sasmor confirmed that he sought only the amount of
rental income reflected on defendants’ tax returns.

(Id. at

22.)
Judge Orenstein ordered all defendants to “[p]rovide
[Sasmor] with a redacted version [of each defendant’s 2009 and
2010 tax returns] that redacts everything but the line for
rental income . . . .”

(Id. at 22; see also id. at 49 (ordering

Garcia and People Choice Defendants to produce “everything
except the tax returns, W-2’s and 1099’s, with the exception
that you provide the tax returns redacted for everything but
rental income.”).)

Judge Orenstein denied Sasmor’s request for

production of defendants’ 1099 forms (id. at 21-22, 49), but
ordered defendants simply to “[i]dentify the bank accounts” and
advised Sasmor that he could subpoena records from those banks
(id. at 23-24; see also id. at 49 (ordering Garcia and People
Choice Defendants to “[i]dentify all the [financial]
accounts”)).
In the instant appeal, Sasmor seeks discovery of any
portion of defendants’ federal and state tax returns that are
“relevant to reporting and tracing income from rental real
16

estate, or items such as management fees derived from rental
real estate income, not only line 17 of federal form 1040.”
(ECF No. 82-2, Sasmor Appeal Ex. 2.)

In particular, Sasmor

seeks, inter alia, the portions of defendants’ tax returns
related to dividend distributions, business income or loss,
capital gain income, and any supporting schedules. 3

(Id.)

Sasmor also seeks discovery of the third party designee, the
sworn taxpayer certification, and the paid preparer information. 4
(Id.)
Sasmor argues that defendants’ tax returns are
relevant to the alleged predicate acts of mail fraud and money
laundering “involving false reporting and/or laundering of
income from rental real estate.”

(Id. n.1.)

He also states

that evidence of defendants’ alleged “submission of false income
statements and evasion of income reporting could not be obtained
other than by the tax documents themselves.”

(Id.)

“Although tax returns are not privileged documents,
Court[s] are reluctant to order their discovery in part because
of the ‘private nature of the sensitive information contained
3

From the “individual Defendants,” Sasmor seeks “redacted 2009 and 2010
federal tax returns showing at least lines 7, 9a, 9b, 12, 13, 14, 17, and 21
and all Forms, Schedules and lists provided to support the responses to those
lines, as well as the corresponding information from state tax returns.”
(ECF No. 82-2, Sasmor Appeal Ex. 2.) From the “entity Defendants,” Sasmor
seeks “full federal and state tax returns, as well as the W-2, 1099, and K-1
forms that they issued, all for 2009 and 2010.” (Id.)
4
Sasmor refers to these portions as the “Third Party Designee,” “Sign Here,”
and “Paid Preparer Use Only” sections of the tax returns. (ECF No. 82-2,
Sasmor Appeal Ex. 2.)

17

therein, and in part from the public interest in encouraging the
filing by taxpayers of complete and accurate returns.’”

Chen v.

Republic Rest. Corp., No. 07 Civ. 3307, 2008 U.S. Dist. LEXIS
24000, at *4 (S.D.N.Y. Mar. 26, 2008) (citing Smith v. Bader, 83
F.R.D. 437, 438 (S.D.N.Y. 1979)).

In order to reconcile privacy

concerns with liberal pretrial discovery, tax returns typically
are subject to compelled production in civil cases only upon a
two-part showing:

“(1) the returns must be relevant to the

subject matter of the action and (2) there must be a compelling
need for the returns because the information is not ‘otherwise
readily obtainable.’”

Carmody v. Vill. of Rockville Centre, No.

05-CV-4907, 2007 U.S. Dist. LEXIS 50933, at *2 (E.D.N.Y. July
13, 2007) (quoting United States v. Bonanno Family of La Cosa
Nostra, 119 F.R.D. 625, 627 (E.D.N.Y. 1988)); accord Ellis v.
City of New York, 243 F.R.D. 109, 111-12 (S.D.N.Y. 2007) (“The
standard for ordering disclosure [of tax returns] is two-part;
the moving party must demonstrate that 1) the returns are
relevant to the subject matter of the action and 2) a compelling
need for the information.”).
Sasmor has failed to articulate any reason that
additional portions of defendants’ tax returns, supporting
schedules, and W-2 and 1099 forms are relevant to proving the
claims or defenses asserted, let alone a compelling need for
disclosure of those confidential documents.
18

Insofar as

plaintiffs allege that defendants “filled out annual tax returns
in which they did not claim rents collected as income . . .”
(ECF No. 41, Am. Compl. ¶ 151), Judge Orenstein’s order
directing the defendants to provide tax returns that redact
everything but the line for rental income is appropriately
tailored to provide Sasmor with the relevant information needed
to pursue his claim.

Indeed, Sasmor could have sought the

information regarding the amount of rental income through an
interrogatory.

Further, Judge Orenstein directed defendants to

identify their bank accounts so that Sasmor can subpoena the
banks for defendants’ account information, which will reflect
any other income defendants received.
For the foregoing reasons, ordering production of the
documents sought by Sasmor would be duplicative, overly
burdensome, and an unwarranted intrusion into the defendants’
privacy.

Accordingly, Judge Orenstein’s ruling denying Sasmor’s

motion to compel the production of defendants’ tax-related
documents, other than the line for rental income, is neither
clearly erroneous nor contrary to law, and is affirmed.
To the extent that defendants have not already
provided the identity of their tax preparers, such information
may lead to the discovery of admissible evidence relevant to the
claims or defenses in this case.

19

Accordingly, defendants are

directed to identify the names and addresses of individuals
involved in the preparation of defendants’ tax returns.
C.

Other Persons Involved in Certain Entities
Third, Sasmor seeks to compel the Trust Defendants to

supplement under oath their response to the following request:
For the trusts, corporations, and LLCs you
already identified (Ronald Henry Land Trust,
Henry Management, LLC, and 65 2B Management
Inc.), identify all other persons involved
in each now or in the last three (3) years,
the nature of their involvement, and the
commencement and termination dates of their
involvement. 5
(ECF No. 82-3, Sasmor Appeal Ex. 3 n.4.)
During the January 11, 2012 status conference, counsel
for the Trust Defendants asserted that he had disclosed all of
5

This request is a narrowed version of plaintiffs’ original Interrogatory and
Document Request No. 3 to the Trust Defendants (“T3”), which stated:
Identify every trust, corporation, LLC, partnership,
or entity of which, now or in the last five (5)
years, you were a trustee, beneficiary, officer,
director, manager, member, partner, employee, agent,
attorney-in-fact, independent contractor,
stockholder, or incorporator, or of which you were
involved in the operation or management in any other
way; describe your involvement in each and the dates
of your involvement; the reasons for the commencement
and termination of your involvement in each; identify
all other persons involved in each now or in the last
five (5) years, the nature of their involvement, and
the commencement and termination dates of their
involvement; identify the business and financial
records kept by each and the tax identification
identification [sic] numbers for each; provide the
formation documents or formation agreement for each;
provide any assignment, certificate, or documentation
of legal or beneficial interest for each; and
identify the chain of custody for each document
provided starting from its creation and including the
person currently in custody of each document.
(ECF No. 57-1, Requests to Trust Defs. at 5.)

20

the members of the identified trusts, corporations, and LLCs
since 2009.

(ECF No. 98, 1/11/2012 Tr. at 12-13.)

Sasmor

replied that he suspected that counsel for the Trust Defendants
“knows more now . . . than he did at the previous meeting.”
(Id. at 13.)

Judge Orenstein concluded that there was no need

to compel further disclosure, and directed Sasmor to serve
subpoenas on or depose the individuals already identified in
order to obtain any additional information sought in response to
his request.

(Id. at 13-14.)

Sasmor now appeals Judge Orenstein’s ruling, arguing
that the Trust Defendants’ attorney’s statement that he had
disclosed all of the individuals involved in any of the
identified entities during the last three years is insufficient
because the statement was not made under oath.

(ECF No. 82-3,

Sasmor Appeal Ex. 3.)
Federal Rule of Civil Procedure 33(b)(3) provides that
“[e]ach interrogatory must, to the extent it is not objected to,
be answered separately and fully in writing under oath.”
R. Civ. P. 33(b)(3).

Fed.

The oath requirement applicable to

interrogatories has legal significance, and courts have
routinely refused to consider interrogatories that do not
comport with that mandate.

See, e.g., Miroglio S.P.A. v. Conway

Stores, Inc., No. 05 Civ. 00121, 2008 U.S. Dist. LEXIS 81755, at
*17-18 (S.D.N.Y. Oct. 15, 2008) (finding signed interrogatory
21

responses inadmissible at trial because they were not sworn to
under oath); see also Cabales v. United States, 51 F.R.D. 498,
499 (S.D.N.Y. 1970), aff’d, 447 F.2d 1358 (2d Cir. 1971)
(finding that an unsigned, unverified writing purporting to be
plaintiff’s answer did not qualify as an answer under Rule 33);
Trueman v. N.Y. State Canal Corp., No. 09-CV-049, 2010 U.S.
Dist. LEXIS 16430, at *15-16 (N.D.N.Y. Feb. 24, 2010) (finding
interrogatory responses signed by attorney to be improper and
affirming that “the answer must remain the party’s and not the
attorney’s”).
In addition, a party that has responded to an
interrogatory or document request is obligated to supplement or
correct its disclosure or response “in a timely manner if the
party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the
other parties during the discovery process or in writing.”

Fed.

R. Civ. P. 26(e)(1)(A).
In this instance, the Trust Defendants’ response to
plaintiffs’ interrogatory, provided at the January 11, 2012
status conference, was not given under oath.

Accordingly, the

Trust Defendants are directed to identify, in the form of an
amended verified response to interrogatories or other writing
under oath, all other persons involved in the Ronald Henry Land
22

Trust, Henry Management, LLC, and 65 2B Management, Inc., now or
in the last three years, the nature of their involvement, and
the commencement and termination dates of their involvement in
those entities.
D.

Categories of Business Records
Fourth, Sasmor seeks to compel all defendants to

respond to T5/G5/P5, narrowed as follows:
Identify by category all the types of
documents or records that you keep in the
ordinary course of business and that each of
the trusts and entities identified in
response to [Interrogatory] No. 3 keep in
the ordinary course of business, and also
identify the location of each of those
documents and records and in whose custody
they are kept. 6
(ECF No. 82-3, Sasmor Appeal Ex. 3 n.1.)
Based on the court’s review of the transcript of the
January 11, 2012 status conference, it appears that there may
have been some miscommunication between Sasmor and Judge
Orenstein as to what was being sought and what was ruled upon
during that conference.

Specifically, Judge Orenstein appears

to have denied Sasmor’s request, set forth in T3/G3/P3, asking
6

Plaintiffs’ original T5/G5/P5 stated, in relevant part:
Identify all documents or records of any type or form
that are kept in the ordinary course of business by
you and by every trust, corporation, LLC,
partnership, or entity that you identified in
Interrogatory No. 3 above, and also identify the
location of each of those documents or records and in
whose custody they are kept.

(ECF No. 57-1, Requests to Trust Defs. at 6; ECF No. 64-1, Requests to Garcia
Defs. at 5-6; ECF No. 64-2, Requests to People Choice Defs. at 5-6.)

23

defendants to “identify the business and financial records kept”
by each trust, corporation, LLC, partnership, or entity in which
any of the defendants was involved, “provide the formation
documents or formation agreement” for each entity, “provide any
assignment, certificate or documentation of legal or beneficial
interest” for each entity, and “identify the chain of custody
for each document provided.”

(ECF No. 57-1, Requests to Trust

Defs. at 5; ECF No. 64-1, Requests to Garcia Defs. at 5; ECF No.
64-2, Requests to People Choice Defs. at 5; see ECF No. 98,
1/11/2012 Tr. at 14-15.)

Although Sasmor asserted that he

sought only the “categories of records” kept, as Judge Orenstein
noted, that limitation did not appear in T3/G3/P3.

(ECF No. 98,

1/11/2012 Tr. at 14-15.)
In the instant appeal, Sasmor seeks to compel
defendants to respond to T5/G5/P5, as narrowed above.

Although

it is generally appropriate for a district court to refer the
parties to the magistrate judge to decide discovery disputes
that have not been addressed by the magistrate judge, because
Sasmor’s objection was made and denied in his motion for
reconsideration, (see ECF No. 76-3, Sasmor Motion for
Reconsideration Ex. 3; Order dated 2/3/2012), the court rules on
Sasmor’s request as follows.

The court finds that Sasmor’s

request for defendants to “[i]dentify by category all the types
of documents or records that [they] keep in the ordinary course
24

of business” is overbroad, unreasonably vague, and unduly
burdensome.

As framed, the request is unlimited by time,

location, or subject matter, and is not tailored to seek
evidence relevant to plaintiffs’ claims.
Sasmor’s argument that “documents must be identified
and provided before depositions to enable preparation of
questions about those documents” (ECF No. 82-3, Sasmor Appeal
Ex. E), belies his assertion that he seeks only the
identification of categories of documents and not the documents
themselves.

Further, Sasmor’s stated need for information

regarding “Defendants’ regular way of conducting business”
(id.), would be readily and more efficiently met by serving a
deposition notice or subpoena, pursuant to Federal Rule of Civil
Procedure 30(b)(6), seeking to depose the individuals involved
in defendants’ business operations.
Accordingly, the court affirms Judge Orenstein’s
discovery ruling denying Sasmor’s motion to compel a further
response because it is neither clearly erroneous nor contrary to
law.
E.

Relationships Between the Defendants and Grand Rabbi
Moses Teitelbaum or Garcia Iron Works, Inc.
Fifth, Sasmor seeks to compel defendants to respond to

plaintiffs’ Interrogatory and Document Request No. 4
(“T4/G4/P4”), narrowed as follows:

25

Are more than one of the defendants connected because
of being relatives of the late Grand Rabbi Moses
Teitelbaum? If so, please list all Defendants that
are relatives of Grand Rabbi Teitelbaum and describe
the connection. 7
(ECF No. 82-4, Sasmor Appeal Ex. 4 n.2.)

The Trust Defendants

objected to T4 in its entirety, asserting that it was antiSemitic in nature, overbroad, and irrelevant.

(ECF No. 70-1,

[Trust Defendants’] Responses to Plaintiffs’ First Set of
Interrogatories & Document Demands, dated 12/30/2011 (“Trust
Defs. Response”) at 11.)

The Garcia and People Choice

Defendants responded to G4/P4 that they “d[id] not know the
answer and d[id] not understand the question.”

(ECF No. 64-3,

Garcia Defs. Unexecuted Draft Responses ¶ 4; ECF No. 64-4,
People Choice Defs. Unexecuted Draft Responses ¶ 4.)
In addition, Sasmor seeks to compel the Garcia and
People Choice Defendants to respond to plaintiffs’ Interrogatory
and Document Request No. 20 to the Garcia Defendants (“G20”) and
Interrogatory and Document Request No. 16 to the People Choice
Defendants (“P16”) asking them to:
7

Plaintiffs’ original T4/G4/P4 stated:
Identify every Defendant in this case who is a
relative or descendant by blood or by marriage within
six degrees of consanguinity of the late Grand Rabbi
Moses Teitelbaum, and describe that person’s
relationship to the late Grand Rabbi Moses
Teitelbaum. For each of the 17 Defendants, please
identify his affiliation or relationship with either
or both of the two sons of the late Grand Rabbi Moses
Teitelbaum known as Rabbi Aaron Teitelbaum and Rabbi
Zalman Teitelbaum.

(ECF No. 57-1, Requests to Trust Defs. at 5; ECF No. 64-1, Requests to Garcia
Defs. at 5; ECF No. 64-2, Requests to People Choice Defs. at 5.)

26

Identify all persons you know (including yourself, any
of the Defendants, and any other persons) who have
operated, managed, been employed by, worked at
contracted with, purchased from, or otherwise
conducted business with Garcia Iron Works, Inc.,
formerly located at 56 Franklin Avenue, Brooklyn, NY.
For each such person, state the nature of that
person’s involvement with Garcia Iron Works, Inc. 8
(ECF No. 82-4, Sasmor Appeal Ex. 4 n.2; ECF No. 64-1, Requests
to Garcia Defs. at 12; ECF No. 64-2, Requests to People Choice
Defs. at 10.)

The Garcia and People Choice Defendants initially

objected to G20 and P16 “as constituting harassment and not
designed or likely to lead to relevant information.”

(ECF No.

64-3, Garcia Defs. Unexecuted Draft Responses ¶ 20; ECF No. 644, People Choice Defs. Unexecuted Draft Responses ¶ 16.)
Further, at the January 11, 2012 status conference, counsel for
the Garcia and People Choice Defendants stated, “[t]here’s no
relation between any of the defendants and Garcia Ironworks.”
(ECF No. 98, 1/11/2012 Tr. at 58.)
Judge Orenstein denied both requests as to all
defendants.

(See id. at 16-17 (stating that Sasmor’s attempt to

link defendants with Rabbi Moses Teitelbaum is a “fishing
expedition”); id. at 49 (stating that G4/P4 was denied); id. at
58-59 (noting that Sasmor’s attempt to link defendants to Garcia
8

This request was also served on the Trust Defendants as Interrogatory and
Document Request No. 19 (“T19”). (See ECF No. 57-1, Requests to Trust Defs.
at 12.) The Trust Defendants responded that they “have no knowledge of
Garcia Iron Works Inc.” (ECF No. 70-1, Trust Defs. Response at 21.) Sasmor
appears to have been satisfied with that response, as the instant appeal only
seeks responses from the Garcia and People Choice Defendants. (See ECF No.
82-4, Sasmor Appeal Ex. 4.)

27

Iron Works is “precisely the sort of flight of fancy reasoning
that I’m just strongly urging you to reconsider”).)
In the instant appeal, Sasmor asserts that “[p]ossible
common family relationships to the esteemed late Grand Rabbi and
a possible family business, Garcia Iron Works, Inc., . . .
provide reasonable lines of inquiry into the relationships
amongst the Defendants” and that he should be afforded “the
opportunity to use every thread to weave the fabric of the
enterprise.”

(ECF No. 82-4, Sasmor Appeal Ex. 4.)

Sasmor

further states, “[o]f course, if there is no relationship, the
Defendants simply may say so in their responses . . . .”

(Id.)

Notwithstanding Sasmor’s assertion that he should not
be precluded from discovery of “facts underlying his opponent’s
case” (id.), Sasmor has failed to satisfy his burden of “showing
that the discovery sought is more than merely a fishing
expedition.”

Evans, 1994 U.S. Dist. LEXIS 6187, at *1.

He has

not presented any evidence or other reasonable basis to believe
that there might be any connection between any of the defendants
and Rabbi Teitelbaum or Garcia Iron Works, Inc., or that such a
connection would be relevant to the claims or defenses in this
case.

Rather, Sasmor appears to concede that his request is

based on pure speculation that there may exist some familial
ties among the defendants and Rabbi Teitelbaum or Garcia Iron
Works, Inc.

This is plainly insufficient under Rule 26.
28

See,

e.g., Tottenham, 2002 U.S. Dist. LEXIS 11313, at *4 (“Discovery
requests cannot be based on pure speculation or conjecture.”);
Tucker v. Am. Int’l Group, Inc., No. 3:09-CV–1499, 2012 U.S.
Dist. LEXIS 35374, at *31 (D. Conn. Mar. 15, 2012) (denying
motion to compel inspection of computer records where the
“Plaintiff concedes that she speculates, rather than knows of,
the existence of the emails she seeks in her proposed
inspection” and “the likelihood of finding the information
sought remains in doubt”).
Accordingly, Judge Orenstein’s ruling denying Sasmor’s
motion to compel a response to his inquiries regarding
defendants’ connections to the late Grand Rabbi Moses Teitelbaum
and Garcia Iron Works, Inc. is not clearly erroneous or contrary
to law, and is therefore affirmed.
F.

Documents Relating to the Conveyance of 287 Franklin
Avenue to the Ronald Henry Land Trust
Sixth, Sasmor seeks to compel the Trust Defendants to

respond to Interrogatory and Document Request No. 15 (“T15”),
which provides:
For the deed granting 287 Franklin Avenue
from Ronald Henry to Ronald Henry Land Trust
. . . , the “Agreement and Declaration of
Trust — Ronald Henry Land Trust” . . . and
the “Assignment of Beneficial Interest in
Land Trust” . . . , identify who wrote or
prepared each document, the chain of custody
for each document starting from its creation
and including the person currently in
custody of each document, who originally
29

suggested the idea to prepare and the format
of each of these documents, who originally
suggested deeding 287 Franklin Avenue to
Ronald Henry Land Trust, who was involved in
the preparation, discussion, and decision to
execute the three documents, and what was
the purpose of the conveyance of 287
Franklin Avenue to Ronald Henry Land Trust. 9
(ECF No. 82-5, Sasmor Appeal Ex. 5 n.1; ECF No. 57-1, Requests
to Trust Defs. at 10.)

The Trust Defendants objected to T15 as

violating “the protections defined by the Federal Rules of
Evidence Rule 502(g), work product protection as defined by
Federal Rules of Evidence Rule 502(g) or which is otherwise
privileged.”

(ECF No. 70-1, Trust Defs. Response at 19.)

The

Trust Defendants nevertheless responded that “[u]pon information
and belief, Ephraim Frenkel prepared the documents.
have no knowledge of the chain of custody.”

Defendants

(Id.)

At the January 11, 2012 status conference, Sasmor
stated that “the main thing we’re looking for is, who has [the
trust agreement] now?”

(ECF No. 98, 1/11/2012 Tr. at 35.)

Judge Orenstein confirmed that Sasmor was not trying to

9

Plaintiffs also sought this information from the Garcia Defendants, as
Interrogatory and Document Request No. 16 (“G16”), and from the People Choice
Defendants, as Interrogatory and Document Request No. 13 (“P13”). (See ECF
No. 64-1, Requests to Garcia Defs. at 10; ECF No. 64-2, Requests to People
Choice Defs. at 9.) During the January 11, 2012 status conference, Judge
Orenstein ordered the Garcia and People Choice Defendants to provide the
requested information “item by item, here’s what we have, here’s what we
don’t have, here’s what we don’t have anything about.” (ECF No. 98,
1/11/2012 Tr. at 56.) The Garcia and People Choice Defendants objected that
“many of these questions are very broad and again goes back to the fishing
expedition and so forth.” (Id.) Judge Orenstein agreed, but stated that he
would not explore the issue further because the defendants had not “done
something about it in a timely manner.” (Id.)

30

determine the full chain of custody, but rather “what happened
to [the trust agreement] — who had it among the defendants and
what did they do with it? . . . .
(Id. at 37.)

How did they dispose of it?”

Judge Orenstein ordered the Trust Defendants to

certify who currently has custody of the trust agreement.
at 36-37.)

(Id.

Sasmor did not request any further response to T15,

and Judge Orenstein did not address any other portion of the
request.

Contrary to the Trust Defendants’ representations (see

ECF No. 88, [Trust Defendants’] Reply in Opposition to Sasmor’s
Objections to Magistrate’s Orders, filed 3/5/2012, at 7), Judge
Orenstein did not specifically address the attorney-client
privilege as it pertained to T15.
In the instant appeal, Sasmor argues that the Trust
Defendants’ response, based “upon information and belief,” is
insufficient.

(ECF No. 82-5, Sasmor Appeal Ex. 5.)

He also

argues that the Trust Defendants’ “privilege objection to the
remainder of the interrogatory has been waived by failure to
provide a privilege log.”

(Id.)

Sasmor further asserts that

“the details of individuals involved with the deed and [T]rust
[D]efendants are important to the choice and preparation of
depositions.”

(Id.)

Although Judge Orenstein did not specifically address
the remainder of T15 during the January 11, 2012 status
conference, Sasmor did object regarding the individuals involved
31

in the deed and trust documents in his motion for
reconsideration, (see ECF No. 76-5, Sasmor Motion for
Reconsideration Ex. 5), which Judge Orenstein denied, (see Order
dated 2/3/2012).

Therefore, the court considers Sasmor’s

request to have been denied and rules on the request as follows.
The court directs the Trust Defendants to supplement
their response to T15, which was made “upon information and
belief,” by identifying, in writing under oath, the individual
or individuals who negotiated and/or drafted the deed granting
287 Franklin Avenue from Ronald Henry to the Ronald Henry Land
Trust, the agreement and declaration of trust, and the
assignment of beneficial interest.

The additional information

that Sasmor seeks, to the extent not privileged, including who
originally suggested conveying 287 Franklin Avenue to the Ronald
Henry Land Trust and the purpose of that conveyance, can be
obtained more efficiently and appropriately during a deposition
of the individual(s) who negotiated and/or drafted the deed, the
trust agreement, and the assignment of beneficial interest.
Accordingly, it was neither clearly erroneous nor contrary to
law for Judge Orenstein to refuse to compel a further response
to T15, and the remainder of Sasmor’s request is denied.
G.

Additional Document Requests
Finally, Sasmor seeks to compel the Trust Defendants

to respond to the document request portions of the following
32

requests, on which Sasmor claims Judge Orenstein did not
explicitly rule:
Interrogatory and Document Request No. 9
(“T9”): [. . . .] Please provide all
documents in your possession, custody, or
control related to 287 Franklin Avenue,
including but not limited to leases with
Plaintiffs or with Defendant Peter Henry,
all other leases, financial records,
receipts, check copies, deeds, trust
documents, contracts, management agreements,
letters, emails, and all other documents.
Interrogatory and Document Request No. 10
(“T10”): [. . . .] Please provide all
documents in your possession, custody, or
control related to 175 Tompkins Avenue,
including but not limited to leases,
financial records, receipts, check copies,
deeds, trust documents, contracts,
management agreements, letters, emails, and
all other documents.
Interrogatory and Document Request No. 11
(“T11”): [. . . .] Please provide all
documents in your possession, custody, or
control related to each agreement [between
any of the other defendants and defendant
Ronald Henry] and each payment [of cash or
other valuable consideration to or from
defendant Ronald Henry], including but not
limited to any written agreement, any papers
signed by Ronald Henry, and any check
copies, receipts, or bank records related to
the payments.
Interrogatory and Document Request No. 14
(“T14”): [. . . .] Please provide receipts,
check copies, bills, statements, and any
other documents in your possession, custody,
or control showing payments or concerning
arrangements made for utilities, taxes, and
violations at 287 Franklin Avenue.
Interrogatory and Document Request No. 18
(“T18”): [. . . .] Please provide . . . any
33

other written agreement, receipt, check
copy, paper, correspondence, email, or other
document signed by Peter Henry or concerning
Peter Henry.
(ECF No. 82-6, Sasmor Appeal Ex. 6 n.1; ECF No. 57-1, Requests
to Trust Defs. at 8-11.)
Contrary to Sasmor’s assertion, it appears that Judge
Orenstein did rule on T9 at the January 11, 2012 status
conference.

Specifically, Sasmor stated that he sought a copy

of a lease between the Ronald Henry Land Trust and Peter Henry.
(ECF No. 98, 1/11/2012 Tr. at 28-29.)

In response, counsel for

the Trust Defendants stated that he was “not aware of any lease
between the trust and Peter Henry.”

(Id. at 29.)

Judge

Orenstein ordered the Trust Defendants to “[p]rovide an
affidavit from a person who has knowledge of that possible lease
to describe the circumstances.”

(Id.)

Sasmor acknowledged that

the requests in T9 “seem to be similar to the sort of things
that your Honor said would be sought in deposition, so I do
still seek those.”

(Id. at 30.)

Judge Orenstein stated that he

was “not going to compel anything beyond an affidavit concerning
the Peter Henry possible lease and information about rent
payments to the defendants.”

(Id.)

With respect to T10, Sasmor also acknowledged that
“maybe this would be better for depositions, again without
waiving what I requested.”

(Id. at 31.)

34

Judge Orenstein agreed

and denied further relief as to T10.

(Id.)

Sasmor did not

expressly pursue the production of any documents in response to
T10.
With respect to T11, Sasmor stated that defendants had
provided one agreement regarding payment of cash or valuable
consideration to or from defendant Ronald Henry, but had not
responded to the other portions of the request.
ECF No. 70-1, Trust Defs. Response at 17.)

(Id. at 32; see

Counsel for the

Trust Defendants agreed to “provide an affidavit that there’s no
other payment . . . [a]nd if there is another payment between
Ronald Henry and my clients, we’ll provide that information.”
(ECF No. 98, 1/11/2012 Tr. at 32.)

Sasmor did not pursue

further his request for documents responsive to T11.

(Id.)

The Trust Defendants initially responded to T14 by
asserting, “upon information and belief,” that any property
taxes were paid by the bank, utilities were paid by former
tenants, and any fines assessed were being contested and had not
been paid.

(ECF No. 70-1, Trust Defs. Response at 18.)

At the

January 11, 2012 status conference, Sasmor objected to the Trust
Defendants’ response insofar as it was made “upon information
and belief.”

(ECF No. 98, 1/11/2012 Tr. at 33.)

Judge

Orenstein ordered the Trust Defendants to clarify their response
by striking the “upon information and belief” language and
replacing it with a declarative sentence or supplementing the
35

information provided.

(Id.)

Sasmor did not raise any further

objections or request any additional information in response to
T14.
Similarly, Sasmor noted with respect to T18 that
“[m]ost of the response is upon information and belief, but
without saying what that is.”

(Id. at 40.)

Judge Orenstein

ordered the Trust Defendants to clarify the basis for their
information and belief and denied any further relief on T18.
(Id. at 40-41.)
Sasmor seeks an order to compel discovery in response
to T9, T10, T11, T14, and T18, arguing that “[i]t was clearly
erroneous or contrary to law not to make any ruling and thereby
de facto to deny certain document requests that were appended to
interrogatories, because, although further inquiry in the
interrogatories was reserved for depositions, the documents
cannot be obtained except by document requests.”

(ECF No. 82,

Sasmor Appeal at 2.)
Sasmor has failed to identify any error in Judge
Orenstein’s rulings with respect to T9, T10, T11, T14, and T18.
As reflected in the transcript of the January 11, 2012 status
conference, Judge Orenstein discussed each request one-by-one
and offered Sasmor an opportunity to articulate what discovery
he continued to seek and why.

To the extent that Sasmor did not

specifically raise the document request portions during the
36

conference, his objections to defendants’ responses and Judge
Orenstein’s rulings regarding those requests may be deemed
waived.

Nevertheless, because Sasmor raised these objections in

his motion for reconsideration, (see ECF No. 76-6, Sasmor Motion
for Reconsideration Ex. 6), which Judge Orenstein denied, (see
Order dated 2/3/2012), the court considers the document requests
to have been denied and therefore rules as follows.
The requests in T9, T10, T11, T14, and T18 are
unlimited in time, location, and subject matter, and are not
reasonably calculated to lead to relevant, let alone admissible
evidence.

Accordingly, Judge Orenstein’s rulings are affirmed

as to these requests because they were neither clearly erroneous
nor contrary to law.
CONCLUSION
For the foregoing reasons, Sasmor’s appeal of Judge
Orenstein’s discovery rulings is granted in part and denied in
part, as follows: (i) by June 7, 2012, all defendants shall
identify, in writing under oath, the individual(s) involved in
the preparation of defendants’ tax returns; (ii) by June 7,
2012, the Trust Defendants shall identify, in writing under
oath, all other persons involved in the Ronald Henry Land Trust,
Henry Management, LLC, and 65 2B Management, Inc., now or in the
last three years, the nature of their involvement, and the
commencement and termination dates of their involvement in those
37

entities; (iii) by June 7, 2012, the Trust Defendants shall
identify, in writing under oath, the individual(s) who
negotiated and/or drafted the deed granting 287 Franklin Avenue
from Ronald Henry to the Ronald Henry Land Trust, the agreement
and declaration of trust, and the assignment of beneficial
interest; and (iv) all other rulings made by Judge Orenstein
during the status conference on January 11, 2012 are affirmed.
Counsel for the Trust Defendants shall serve a copy of
the instant Memorandum and Order on Jon Sasmor and file a
certificate of service on ECF by May 25, 2012.

SO ORDERED.
Dated: May 24, 2012
Brooklyn, New York
________/s/
______
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

38