Neogenix Oncology, Inc. v. Gordon et al
ORDER granting in part and denying in part 156 Motion to Compel; denying 157 Motion to Compel. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 9/22/2017. (Roman, Joshua)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NEOGENIX ONCOLOGY, INC.,
CV 14-4427 (JFB) (AKT)
PETER GORDON, MINTZ LEVIN COHN
FERRIS GLOVSKY and POPEO P.C.,
NIXON PEABODY LLP, DANIEL J. SCHER,
HARRY GURWITCH, and MAIE LEWIS, not
individually but as personal representative of the
Estate of BRIAN LEWIS,
A. KATHLEEN TOMLINSON, Magistrate Judge:
I. PRELIMINARY STATEMENT
This case involves claims for breach of fiduciary duty and legal malpractice primarily
against former law firms and attorneys who provided services to Neogenix Oncology, Inc.
(“Plaintiff” or “Neogenix”). Neogenix is “a publicly reporting biotechnology company focused
on developing genetically engineered cancer treatments.” See Amended Complaint (“Am.
Compl.”) ¶ 1 [DE 35]. Neogenix alleges that Defendants Peter Gordon, the law firms of Mintz,
Levin, Cohn, Ferris, Glovsky, and Popeo, P.C. and Nixon Peabody LLP, Daniel J. Scher, Harry
Gurwitch, the Estate of John Squire, and Maie Lewis (not individually but as personal
representative of the Estate of Brian Lewis) (collectively, the “Defendants”), orchestrated a
“cover up” which “prompted an SEC investigation” and ultimately forced Neogenix to “file for
bankruptcy and sell its assets under court supervision.” Id. ¶ 3.
Specifically, the Amended Complaint asserts that, as part of an effort to raise money for
the company, the former Chief Financial Officer of Neogenix, Defendant Peter Gordon, initiated
the Finder Fee Program, under which Neogenix paid commissions to anyone who brokered a sale
of Neogenix stock, regardless of whether those persons were registered with the Securities and
Exchange Commission (“SEC”). Id. ¶¶ 25-26. Neogenix claims that at the time, it did not know
that the Finder Fee Program violated the Securities Exchange Act of 1934, which essentially
prohibits anyone from selling securities without first being registered with the SEC, and, in turn,
bars a company from compensating these unlicensed brokers. Id. ¶ 29. As a result, Neogenix
brought this suit against (1) its former Chief Financial Officer for breach of fiduciary duty in
instituting the unlawful Finder Fee Program, and (2) all former counsel, chiefly Mintz Levin
Cohn Ferris Glovsky and Popeo P.C. (“Mintz Levin”), for legal malpractice in allegedly failing
to provide proper and timely legal advice with regard to the unlawful Finder Fee Program.
See generally id.
Pending before the Court are two letter motions filed by Plaintiff [DE 156, 157] which
seek to compel various discovery responses from Defendant Nixon Peabody, LLP (“Nixon”).
Nixon opposes both motions. See DE 158, 159. For the reasons which follow, Plaintiff’s motion
to compel supplemental interrogatory responses [DE 156] is GRANTED, in part, and DENIED,
in part, while Plaintiff’s motion to compel supplemental responses to it Requests for Admission
[DE 157] is DENIED.
A. Federal Rule 33
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, “a party may serve on any
other party no more than 25 written interrogatories. . . .” Fed. R. Civ. P. 33(a)(1); see Pegoraro
v. Marrero 281 F.R.D. 122, 128 (S.D.N.Y. 2012). Interrogatories “may relate to any matter that
may be inquired into under Rule 26(b) . . . [and] is not objectionable merely because it asks for
an opinion or contention that relates to fact or the application of law to fact. . . .” Id. 33(a)(2);
see Trueman v. New York State Canal Corp., No. 1:09-CV-049, 2010 WL 681341, at *2
(N.D.N.Y. Feb. 24, 2010) (“Interrogatories, like other discovery devices, may inquire into any
discoverable matter, including facts and contentions.”). The general aim of this discovery device
is to “expeditiously narrow the scope of the litigation, reduce the element of surprise, serve as
admissions for trial, and in a significant matter avoid unnecessary discovery and minimize
expense.” Trueman, 2010 WL 681341, at *2. To that end, the responding party is required to
answer each interrogatory “separately and fully under oath.” Fed. R. Civ. P. 33(b)(3);
287 Franklin Avenue Residents’ Assn., No. 11-CV-976, 2012 WL 189922, at *9 (E.D.N.Y. May
24, 2012). Thus, the Rule explicitly requires the responding party to “provide the best answer
they can based upon information within their possession.” Trueman, 2010 WL 681341, at *2
(citing Fed. R. Civ. P. 33(b)(3)); Edebali v. Bankers Standard Ins. Co., No. CV147095, 2016
WL 4621077, at *2 (E.D.N.Y. Sept. 6, 2016) (quoting Trueman, 2010 WL 681341, at *2).
In order to ensure that each interrogatory is answered “separately” and “fully,” see Fed.
R. Civ. P. 33(b)(3), the responding party is required “to make an inquiry and obtain information
to answer the interrogatories which would include obtaining the information to fully and
completely answer the interrogatories. . . .” Upstate Shredding, LLC v. Ne. Ferrous, Inc.,
No. 312 CV 1015, 2016 WL 865299, at *8 (N.D.N.Y. Mar. 2, 2016); see Zanowic v. Reno, No.
97 Civ. 5292, 2000 WL 1376251, at *3 n.1 (S.D.N.Y. Sept. 25, 2000) (“In responding to
interrogatories . . . a party is under a duty to make a reasonable inquiry concerning the
information sought in the interrogatories, and a party’s failure to describe his efforts to obtain the
information sought . . . renders his responses insufficient.”); Braham v. Perelmuter,
No. 3:15 CV 1094, 2016 WL 1305118, at *3 (D. Conn. Apr. 1, 2016); In re Auction Houses
Antitrust Litig., 196 F.R.D. 444, 445 (S.D.N.Y. 2000) (“A party served with interrogatories is
obliged to respond . . . not only by providing the information it has, but also the information
within its control or otherwise obtainable by it.”). Where a party, despite conducting a diligent
inquiry, is nevertheless unable to provide a responsive answer, any efforts utilized should be set
forth in detail to ensure a sufficient response is interposed. Id.; Zanowic, 2000 WL 1376251, at
*3 n.1. Further, “an answer to an interrogatory must be completed within itself and, it should be
in a form that may be used at trial . . . [Therefore] [r]eference to depositions, other answers to the
interrogatories, other document production, the complaint itself, or any other documents are
improper and thus unresponsive.” Trueman, 2010 WL 681341, at *3; Poulio v. Paul Arpin Van
Lines, Inc., 2004 WL 1368869, at *2 (D. Conn. June 14, 2004) (noting that other courts have
held that a party may not incorporate deposition testimony or rely upon future depositions in lieu
of complete responses to interrogatories); In re Savitt/Adler Litig., 176 F.R.D. 44, 49 (N.D.N.Y.
1997); Davidson v. Goord, 215 F.R.D. 73, 77 (W.D.N.Y. Jan. 30, 2003); Moore Federal Practice
§§ 33.101, 33.103, & 33.106. In addition, “as new information comes into its possession, the
responding party has a continuing duty to supplement their responses.” Trueman, 2010 WL
681341, at *2 (citing Fed. R. Civ. P. 26(e)(1)).
Although a responding party is permitted to object to an interrogatory that it deems to be
improper, the grounds for any such objection “must be stated with specificity. Any ground not
stated in a timely objection is waived unless the court, for good cause, excuses the failure.”
Fed. R. Civ. P. 33(b)(4); see Pegoraro, 281 F.R.D. at 128. It follows that “[B]oilerplate
objections that include unsubstantiated claims of undue burden, overbreadth and lack of
relevancy,” while producing “no documents and answer[ing] no interrogatories . . . are a
paradigm of discovery abuse.” Jacoby v. Hartford Life & Accident Ins. Co., 254 F.R.D. 477, 478
(S.D.N.Y. 2009); Davidson, 215 F.R.D. at 77 (“Generalized objections that a discovery request
is burdensome without resort to specific reasons is similarly insufficient to justify a refusal to
respond.”) (quoting Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589, 592–93
(W.D.N.Y. 1996)). In order to effectively resist providing a response to an interrogatory, a party
must show “specifically how, despite the broad and liberal construction afforded [by] the federal
discovery rules, each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive, . . . by submitting affidavits or offering evidence revealing the nature
of the burden.” Pegoraro, 281 F.R.D. at 128–29 (quoting Compagnie Francaise d’Assurance
Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 42 (S.D.N.Y. 1984)).
B. Federal Rule 36
Rule 36(a) provides, in pertinent part, that “[a] party may serve on any other party a
written request to admit, for purposes of the pending action only, the truth of any matters within
the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about
either; and (B) the genuineness of any described documents.” Fed. R. Civ. P. 36(a). The 1970
Advisory Committee notes make clear that “Rule 36 serves two vital purposes, both of which are
designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to
issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating
those that can be.” Advisory Committee Notes to the 1970 Amendment of Rule 36.
Importantly, “Requests for Admissions are not a discovery device much like
interrogatories, demand for documents, or depositions, nor are they to be considered
substitutions for them.” Henry v. Champlain Enterprises, Inc., 212 F.R.D. 73, 77 (N.D.N.Y.
2003); see T. Rowe Price Small–Cap Fund, Inc. v. Oppenheimer, 174 F.R.D. 38, 42 (S.D.N.Y.
1997); Pasternak v. Dow Kim, No. 10 CIV. 5045, 2011 WL 4552389, at *5 (S.D.N.Y. Sept. 28,
2011) (“RFAs are not a discovery device at all, since [they] presuppose[ ] that the party
proceeding under [Rule 36] knows the facts or has the document and merely wishes its opponent
to concede their genuineness.”) (internal quotations and citations omitted) (alterations in
Instead, the “Requests and corresponding answers are expeditious, efficient resolutions of
factual issues and may, to a considerable degree, when propounded early in the litigation, control
the cost of discovery as well. More important, the binding effect of Admissions is intended to
lend clarity to the presentation of disputed facts in the litigation.” Henry, 212 F.R.D. at 77.
Further, the burden rests with the requesting party to ensure that the requests are set forth
“simply, directly, not vaguely or ambiguously, and in such a manner that they can be answered
with a simple admit or deny without an explanation, and in certain instances, permit a
qualification or explanation for purposes of clarification.” Henry, 212 F.R.D. at 77; see Booth
Oil Site Admin. Group v. Safety-Kleen Corp, 194 F.R.D. 76, 79 (W.D.N.Y. 2000); Diederich v.
Department of the Army, 132 F.R.D. 614, 619 (S.D.N.Y. 1990); T. Rowe Price, 174 F.R.D. at 42.
Once propounded, the respondent is required to admit the truth of the request unless there is a
disagreement as to its truth. Henry, 212 F.R.D. at 77. In that instance, the party must either deny
or object as to the nature of the request and any denial “must be forthright, specific and
unconditional.” Booth Oil, 194 F.R.D. at 80; see Rule 36(a). Any objection interposed must be
directed at and specifically related to a particular request. Henry, 212 F.R.D. at 78. Thus,
“[g]eneral objections without any reference to a specific request to admit are meritless.” Id.
(quoting Diederich, 132 F.R.D. at 616.).
Plaintiff’s Motion to Compel Interrogatory Responses [DE 156]
Plaintiff seeks to compel Nixon to supplement its responses to Interrogatories 1 and 2
contained in Neogenix’s Second Set of Interrogatories. See DE 156 at 1. These two
interrogatories are as follows:
Interrogatory No. 1:
If you contend that you advised Neogenix about risks associated
with the Finder Fee Program, including risks associated with paying
commissions or other transaction-based compensation to persons
not registered with the SEC as brokers, dealers, or broker-dealers,
please explain the basis for that contention, including, without
limitation, the following: (a) the Neogenix employee, officer, or
director with whom you communicated; (b) the Nixon attorneys
participating in each such communication; (c) the date of each
communication; (d) the content of each communication; and (e)
what documents reflecting or recording such communications exist.
Interrogatory No. 2:
Describe what advice, if any, you provided to Neogenix about
regulating or restricting the interactions between finders and
investors or prospective investors in Neogenix, including, but not
limited to, the following: (a) any policies or procedures regarding
these issues; (b) the date on which such policies or procedures were
adopted; (c) whether such policies or procedures were contained in
a written document; (d) what documents reflecting or recording such
policies or procedures exist; and (e) what monitoring or safeguards
were implemented to confirm whether such policies or procedures
were being followed.
Id., Exhibit (“Ex.”) A (Neogenix’s Second Set of Interrogatories to Defendant Nixon). With
respect to each of these interrogatories, Nixon has interposed responses which Neogenix asserts
are insufficient. See id., Ex. B (Nixon’s Responses and Objections to Neogenix’s Second Set of
Interrogatories). Specifically, Neogenix asserts that Nixon’s responses to both Interrogatories 1
and 2 are inadequate because: (1) generalized objections that an interrogatory is overly broad or
unduly burdensome are insufficient; (2) Interrogatories 1 and 2, to the extent they constitute
“contention” interrogatories are not “premature;” (3) a generalized assertion that the information
may be found in Nixon’s business records and ESI cannot satisfy Nixon’s obligation since,
according to Neogenix, “Nixon must specify the appropriate documents from which the
information sought can be derived[;]” (4) depositions are not an adequate substitute since “[e]ven
if depositions may be used to develop the requested information, depositions are expensive
propositions and verified answers to interrogatories can be a much more efficient way to obtain
the evidence sought[;]” and (5) Nixon, as a corporate entity “is obliged to respond to the
interrogatories not only by providing the information it has, but also the information within its
control or otherwise obtainable by it.” DE 156 at 2-4.
In response, Nixon asserts that: (1) Interrogatories 1 and 2 are overly broad since they
“cover[ ] a 12-year period” notwithstanding that “ Nixon only represented Neogenix for a period
of approximately 27 months, from November 2008 through February 2011[;]” (2) “The
individuals with knowledge that would allow Nixon to supplement its responses to the
Interrogatories—namely, Mr. Feigin and Mr. Kass—are no longer employees of Nixon and are
not under Nixon’s control[;]” (3) Nixon has no way of providing sworn responses to Neogenix’s
interrogatories without obtaining the equivalent of sworn testimony from Mr. Kass and Mr.
Feigin[;]” (4) “Neogenix, as well as the other parties in this case, [ ] intend to depose Mr. Kass
and Mr. Feigin regardless of Nixon’s responses to these Interrogatories. At their depositions,
Neogenix—as well as Nixon and all of the other parties in this action—can elicit detailed and
sworn testimony regarding both the subject of the Interrogatories and related topics[;]” (5)
“Neogenix’s Interrogatories are premature contention interrogatories[;]” and (6) the burden of
identifying documents from which some answers to Neogenix’s interrogatories may be derived is
the same for Neogenix as for Nixon, given that the type of information sought by Neogenix is
not confined to specific documents and may be found, if at all, throughout the parties’
productions.” See DE 159 at 1-5.
Nixon has also submitted the Declaration of Brian G. Flanagan, Esq., General Counsel
and partner at Nixon Peabody, LLP. See April 19, 2017 Declaration of Brian G. Flanagan
(“Flanagan Decl.”) [DE 159-1]. In his Declaration, Attorney Flanagan states that both Samuel
Feigin and Mark Kass “are not currently partners of or employed by Nixon” and that
consequently “Nixon does not control Mr. Feigin or Mr. Kass and has no right or ability to
compel them to respond to interrogatories or requests for admission served on Nixon.” Id. ¶ 2.
In addition, “[t]here is no joint defense agreement between Nixon and either Mr. Feigin or Mr.
Kass, nor is there any other agreement between Nixon and Mr. Feigin or Mr. Kass giving Nixon
the ability to compel their participation in the process of responding to Neogenix’s” discovery
requests. Id. ¶ 3. Indeed, both Mr. Feigin and Mr. Kass “are represented by David M.
Schnorrenberg of Crowell & Moring LLP.” Id. ¶ 4. According to Attorney Flanagan, following
a conversation with Attorney Schnorrenberg, he was informed that neither Mr. Feigin or Mr.
Kass would be made “available to Nixon” since Attorney Schnorrenberg “expected shortly to
receive subpoenas from one or more parties in the litigation for deposition testimony of Mr. Kass
and Mr. Feigin” and that “his clients prefer to provide testimony only once to all parties.” Id.
Having reviewed the parties’ respective arguments in conjunction with the relevant case
law, the Court finds that: (1) in light of the time that has passed since Interrogatories 1 and 2
were interposed, they are no longer “premature;” (2) Feigin and Kass — the two individuals who
purportedly have knowledge concerning Interrogatories 1 and 2 — cannot be characterized as
typical “former employees.” Rather, they are both attorneys and former partners of Nixon who
have since severed all ties and who have secured their own independent counsel to represent
them in this litigation. As such, their interests, at this stage, cannot be said to be aligned with
those of Nixon’s. Moreover, since no legal relationship exists as between Feigin and Kass on the
one hand and Nixon on the other, the Court does not find that Nixon possesses the requisite
control over either Feigin or Kass to compel their responses — especially, where, as here, they
are represented by independent counsel; (3) to the extent that former partners Feigin and Kass
are in possession of knowledge relevant to Interrogatories 1 and 2 and because of the nature of
their former roles as partners, to the extent information in Interrogatories 1 and 2 is known to the
remaining partners, that information is to be provided. As to anything else, Plaintiff will need to
seek such information through the depositions of Feigin and Kass.
In addition, the Court finds that the Interrogatory 1, as written, is overly broad both in its
scope as well as its unbounded timeframe. Therefore, Interrogatory 1 shall be limited solely to
the timeframe of November 2008 through February 2011 — the period of time corresponding to
Nixon’s representation of Neogenix. See DE 159 at 1. In addition, Nixon shall only be required
to provide supplemental responses to subsections (a), (b) and (e). To the extent Neogenix seeks
information pertaining to subsections (c) and (d), the proper course for securing such discovery
is through depositions of Feigin and Kass.
Interrogatory 2 shall similarly be limited to the same timeframe.
Plaintiff’s Motion to Compel Responses to Requests for Admission [DE 157]
Plaintiff next seeks to compel Nixon to supplement “certain of its responses to
Neogenix’s First Set of Requests for Admission.” DE 157 at 1. Specifically, Plaintiff requests
that Nixon provide supplemental responses to Requests 3, 6, 9, 12, 31, 32, 34, 39 and 43.
See generally id. Although, according to Plaintiff, Nixon has “fail[ed] to respond to th[ese]
request[s]” because “[t]he individuals [attorneys Feigin and Kass] who may possess knowledge
required to answer th[ese] [r]equest[s] are no longer members of, employed by, or controlled by
Nixon[,]” Nixon should nevertheless be compelled to supplement its responses since “[c]ourts
have required an employer to consult with its former employees in order to respond to a request
to admit.” Id. at 2. In addition, Plaintiff maintains that “Nixon has an obligation to respond with
information it can readily obtain, including with information from its former partners. The only
data available to Neogenix indicate that the former partners remain within Nixon’s control and
available to it.” Id.
In response, Nixon asserts that it cannot accurately admit or deny the Requests at issue
without the benefit of the recollections of Mr. Kass and Mr. Feigin.” DE 158 at 2. According to
Nixon, such inability stems from the fact that “Requests 3, 6, 9, 12, 31, 32, and 34 ask
Nixon to admit that Nixon never gave certain advice to Neogenix.” Id. (emphasis in original);
see DE 157, Ex. A (Requests to Admit). As such, Nixon claims that it cannot admit or deny that
the firm never had occasion to give advice about finder payments” without first obtaining the
“recollections” of Feigin and Kass. Id. Likewise “Nixon cannot admit or deny that Nixon never
advised members of Neogenix’s Board about the ‘propriety’ of paying finders without probing
the recollections of the two lawyers most directly involved with Neogenix [Feigin and Kass].”
Id. (emphasis in original). Nixon proffers the same argument with respect to Requests 39 and 43
which “ask Nixon to admit that at a certain point in time, Nixon knew that certain persons
receiving commissions from Neogenix were not registered with the SEC.” See id. Specifically,
Nixon states that its “‘knowledge’ at particular points in time is that of its current and former
lawyers.” Id. Therefore, it “cannot admit that it did or did not have particular knowledge
without determining whether its lawyers had such knowledge.” Id. Further, Nixon contends that
although it was required to make a “reasonable inquiry and to answer a request for admission if
the information it knows or can readily obtain is sufficient to enable it to admit or deny a
request,” it has met its burden where, as here, it has no control over Kass or Feigin and where
both former partners have secured their own independent counsel of record “who has declined to
make them available to assist Nixon in responding to the Requests.” Id. at 2-3; see Flanagan
Decl. ¶¶ 2-4.
As noted above, “Requests for Admissions are not a discovery device much like
interrogatories, demand for documents, or depositions, nor are they to be considered
substitutions for them.” Henry, 212 F.R.D. at 77; see T. Rowe Price Small–Cap Fund, Inc., 174
F.R.D. at 42; Pasternak, 2011 WL 4552389, at *5 (“RFAs are not a discovery device at all, since
[they] presuppose[ ] that the party proceeding under [Rule 36] knows the facts or has the
document and merely wishes its opponent to concede their genuineness.”) (internal quotations
and citations omitted) (alterations in original). In the instant case, Nixon’s primary argument as
to why it is unable to supplement its answers to Plaintiff’s Requests for Admission is precisely
because it is not in possession of the information that would enable it to ascertain the facts
needed to interpose proper responses. Indeed, in its opposition, Nixon maintains that attorneys
Feigin and Kass — former Nixon partners with intimate knowledge of matters encompassing the
Finder’s Fee Program and the associated legal advice provided (or not provided) to Neogenix —
are the individuals who are in the best position to answer these Requests. However, Nixon
argues that (1) these individuals are no longer within its control since they have left Nixon’s
employ, (2) they have retained their own independent counsel and (3) no joint defense or similar
agreement exists imbuing Nixon with authority to “claw-back” these two former partners.
See DE 158 at 2-3; Flanagan Decl. ¶¶ 2-4. Moreover, Plaintiff does not contest these facts, but
merely states that “[t]he only data available to Neogenix indicate that the former partners remain
within Nixon’s control and available to it.” DE 157 at 2. As previously pointed out, both Feigin
and Kass are not typical former employees since they are both attorneys who are now
represented by counsel. Flanagan Decl. ¶ 4.
Although Plaintiff has cited authority standing for the general proposition that a party is
required to conduct a “reasonable inquiry,” DE 157 at 2 (citing S.E.C. v. Thrasher, No. 92-CV6987, 1996 WL 508318, at *5 (S.D.N.Y. Sept. 6, 1996)), it has not cited authority requiring an
answering party to expand an inquiry to non-parties no longer within its control in the specific
factual circumstances present here. To the contrary, at least some courts have found that
“reasonable inquiry” does not generally extend to non-parties. See Bernstein v. Principal Life
Ins. Co., No. 09 CIV. 4925, 2010 WL 4922093, at *4 (S.D.N.Y. Dec. 2, 2010) (“The
requirement of ‘reasonable inquiry’ does not generally extend to third parties, absent sworn
deposition testimony of such third party.”) (quoting Diederich v. Dep’t of Army, 132 F.R.D. 614,
620 (S.D.N.Y. 1990)); T. Rowe Price Small–Cap Fund, Inc., 174 F.R.D. at 43-44; Dubin v. E.F.
Hutton Grp. Inc., 125 F.R.D. 372, 374 (S.D.N.Y. 1989) (denying motion to compel and
recognizing that “plaintiffs have not brought to this Court’s attention any authority
demonstrating that a party’s obligation to make ‘reasonable inquiry’ entails seeking information
from a third party absent sworn deposition testimony.”) (emphasis in original). Therefore, while
it is beyond dispute that the “reasonable inquiry” standard requires that an employer make
contact with “any of [ ] officers, administrators, agents, employees . . . or other personnel, who
conceivably, but in realistic terms, may have information which may lead to or furnish the
necessary and appropriate response,” T. Rowe Price Small-Cap Fund, Inc., 174 F.R.D. at 43, the
scope of the inquiry is not so broad as to always encompass those former employees who no
longer have any ties to their former employer and who are otherwise non-parties to the action.
See Morreale v. Willcox & Gobbs DN, Inc., No. 89 Civ. 5531, 1991 WL 107441, at *1
(S.D.N.Y.1991) (no obligation to interview former employees of non-party); F.D.I.C. v.
Halpern, 271 F.R.D. 191, 194 (D. Nev. 2010) (to the extent that “information, within the
exclusive knowledge of nonparties, is required in order to comply with a request, defendant need
not interview that person if they are no longer employed by or otherwise connected” with the
employer) (quoting Diederich, 132 F.R.D. at 620). Indeed, even S.E.C. v. Thrasher, cited by
Plaintiff, acknowledges that although it may be appropriate in some circumstances to make
contact with a former employee such a step would generally only be required “when the former
employee was readily available.” S.E.C. v. Thrasher, No. 92 CIV. 6987, 1996 WL 507318, at *5
(S.D.N.Y. Sept. 6, 1996).
Here, Nixon made a good faith inquiry through Feigin and Kass’ independent counsel to
obtain their cooperation. See Flanagan Decl. ¶¶ 1-4. Despite these efforts, Nixon was rebuffed
and was instead informed that both Feigin and Kass would only be made available upon being
subpoenaed for deposition. See id. ¶ 4. As such, given the status of both Feigin and Kass as
former employees in conjunction with the steps taken to communicate with them through
counsel, the Court is satisfied that Plaintiff has met its burden to conduct a “reasonable inquiry.”
Nothing more is required. To the extent Plaintiff seeks further clarity as to the issues raised in
Requests 3, 6, 9, 12, 31, 32, 34, 39 and 43, it is free to explore these areas at Feigin and Kass’
Based upon the foregoing analysis, Plaintiff’s motion to compel supplemental
interrogatory responses [DE 156] is GRANTED, in part, and DENIED, in part, and Plaintiff’s
motion to compel supplemental responses to its Requests for Admission [DE 157] is DENIED.
Dated: Central Islip, New York
September 22, 2017
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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