Coen v. Americare Certified Special Services, Inc. et al

Filing 15

ORDER denying 13 Motion to Quash. For the reasons stated in the attached Order, the Court denies defendants' motion in its entirety, except that confidential portions of the subpoenaed documents may in good faith be designated as such pursuant to a confidentiality agreement previously executed by the parties, see [14-4]. Ordered by Magistrate Judge Roanne L. Mann on 3/25/2014. (Bauermeister, Mischa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MENDEL COEN,
MEMORANDUM
AND ORDER

Plaintiff,
-against-

13-CV-5522 (KAM)

AMERICARE CERTIFIED SPECIAL
SERVICES, INC., et al.,
Defendants.
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ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Currently pending before this Court is a letter-motion filed by defendants Americare
Certified Special Services, Inc. (“Americare”), Martin Kleinman, and Faivish Pewzner
(“Pewzer”) (collectively, “defendants”), to quash or modify a subpoena served on third-party
Marina District Finance Corporation, Inc. (“MDFC”) or, in the alternative, for a protective
order “forbidding or significantly restricting the documents produced” pursuant to that
subpoena (the “MDFC Subpoena”). See Letter Motion to Quash or Modify MDFC Subpoena
(Mar. 20, 2014) (“Def. Motion”) at 1, Electronic Case Filing (“ECF”) Docket Entry (“DE”)
#13. Plaintiff Mendel Coen (“plaintiff”) opposes the motion. See Response in Opposition
(Mar. 21, 2014) (“Pl. Opp.”), DE #14. For the reasons that follow, the Court denies
defendants’ motion in its entirety, except that confidential portions of the subpoenaed
documents may in good faith be designated as such pursuant to a confidentiality agreement
previously executed by the parties (the “Confidentiality Agreement”). See DE #14-4.
DISCUSSION
In this employment discrimination action, plaintiff alleges, among other things, that

while employed by defendant Americare, he was the victim of a pattern of sexual assault and
harassment perpetrated by Americare’s Vice President and Chief Operations Officer, Pewzner,
who “lived a secret ‘double life’ in which he binged on gambling, illegal drugs, and illicit
sex.” Complaint (Oct. 3, 2013) ¶ 3, DE #1; see also, e.g., id. ¶¶ 1-2, 12. Many of the acts
complained of are alleged to have occurred in Atlantic City, New Jersey, and, in particular, at
the Borgata Hotel. See, e.g., id. ¶¶ 3-4, 21-24, 29, 35, 38. Pewzner and his co-defendants
have denied all of these allegations. See generally Answer (Nov. 1, 2013), DE #8.
Defendants’ motion to quash complains that the MDFC Subpoena seeks “proprietary
financial information of defendant Faivish Pewzner.” Def. Motion at 2; see also id. at 3.
According to defendants, the information sought is both confidential and “not relevant to either
party’s claims or defenses . . . .” Id. at 2; see also id. at 3. Plaintiff responds that the
subpoenaed documents are expected to “substantiate the allegations made in [plaintiff’s]
Complaint and show that his version of events is more accurate than the competing version
related by Pewzner.” Pl. Opp. at 2. Additionally, plaintiff contends that defendants’
confidentiality concerns may be addressed by having the MDFC documents designated as
confidential pursuant to the parties’ Confidentiality Agreement. See id. at 3. This Court
agrees.
First, while defendants’ motion suggests that the challenged subpoena seeks broad
categories of “proprietary financial information” relating to Pewzner, see Def. Motion at 2,1

1

Indeed, after reading defendants’ letter, and before examining the subpoena itself, the Court
assumed that the MDFC Subpoena was addressed to Pewzner’s financial advisor, rather than to
a company operating a hotel and casino.
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the MDFC Subpoena is far more limited; MDFC is “the entity that runs the Borgata Hotel
Casino and Spa,” the “Atlantic City hotel where substantial amounts of relevant conduct
occurred.” Pl. Opp. at 1. More specifically, the MDFC Subpoena seeks four categories of
documents, all of which are limited to the time period covered by the Complaint, and three of
which also seek documents pertaining to plaintiff:
1. All documents relating to any stay by Fa[i]vish Pewzner or Mendel Coen at the
Borgata Hotel Casino and Spa between January 1, 2008 and December 31, 2010.
2. All documents relating to any products or services purchased by Fa[i]vish Pewzner
or Mendel Coen at the Borgata Hotel Casino and Spa between January 1, 2008 and
December 31, 2010.
3. All documents relating to any gambling by Fa[i]vish Pewzner or Mendel Coen at the
Borgata Hotel Casino and Spa between January 1, 2008 and December 31, 2010.
4. Documents sufficient to show the current My Borgata Rewards point balance of
Faivish Pewzner, and any redemption of points or other such rewards in connection
with that program.
MDFC Subpoena (Schedule A), DE #13 at 12. For purposes of Rule 26(b)(1) of the Federal
Rules of Civil Procedure, the documents sought are sufficiently relevant to be discoverable, in
that they may well corroborate the allegations in the Complaint that the charged pattern of
discriminatory conduct occurring in Atlantic City and elsewhere was part of a “double life”
that Pewzner was leading. And the subpoenaed documents do relate to matters that are very
much in dispute. See supra p. 2.
Defendants argue that proof of Pewzner’s status as “a high net worth individual is
unduly prejudicial . . . .” Def. Motion at 2. However, this Court is ruling on discoverability,
not admissibility. Furthermore, defendants’ concerns about the sensitive nature of the

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information can be adequately addressed at this time by designating truly confidential
documents pursuant to the parties’ Confidentiality Agreement.
Defendants’ motion is therefore denied.
SO ORDERED.
Dated:

Brooklyn, New York
March 25, 2014

Roanne L. Mann

/s/
ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE

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