Holick et al v. Cellular Sales of New York, LLC et al

Filing 310

ORDER that defts Motion to Compel (Dkt. no. 242 ) is denied; and that pltfs counsel retrieve from the Court's Courtroom Deputy Maria Blunt, the print out of disputed communications, and maintain those documents for the pendency of the present action. Signed by Magistrate Judge Daniel J. Stewart on 3/29/2018. (see)

Case 1:12-cv-00584-NAM-DJS Document 310 Filed 03/29/18 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAN P. HOLICK, JR., STEVEN MOFFITT,
JUSTIN MOFFITT, GURWINDER SINGH,
JASON MACK, WILLIAM BURRELL, and
TIMOTHY M. PRATT,
Plaintiffs, on behalf
of themselves and all
others similarly situated,
D

-vCELLULAR SALES OF NEW YORK, LLC, and
CELLULAR SALES OF KNOXVILLE, INC,

Civ. No. 1:12-CV-584
(NAM/DJS)
(Lead Case)1

Defendants.

APPEARANCES:

OF COUNSEL:

GLEASON, DUNN LAW FIRM
Attorneys for Plaintiffs
40 Beaver Street
Albany, New York 12207

DANIEL A. JACOBS, ESQ.
RONALD G. DUNN, ESQ.

CHAMBERLAIN, HRDLICKA LAW FIRM
Attorneys for Defendants
1200 Smith Street, Suite 1400
Houston, Texas 77002

CHARLES L. CARBO, III, ESQ.
JULIE R. OFFERMAN, ESQ.

HINMAN, STRAUB LAW FIRM
Attorneys for Defendants
121 State Street
Albany, New York 12207

JOSEPH M. DOUGHERTY, ESQ.

DANIEL J. STEWART
United States Magistrate Judge
1

Pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, the Court previously consolidated with this
action the matter of Holick v. Cellular Sales of New York, LLC, 1:13-cv-00738, with 1:12-CV-584 designated the lead
case and 1:13-CV-00738 the member case. (See Dkt. No. 49).

Case 1:12-cv-00584-NAM-DJS Document 310 Filed 03/29/18 Page 2 of 3

ORDER
The Defendants have filed a Letter-Motion with the Court to compel, inter alia,2
production of communications between Plaintiff Jan Holick and several other opt-in or
potential opt-in Plaintiffs, as well as Facebook communications with Shane Baringer,
William Burrell, and Jason Mack. Dkt. Nos. 242, 242-21 In response to the Motion,
Plaintiffs submitted a Letter-Brief concerning these communications and the objections that
D

were raised by them in response to the Discovery Demands, including that the Demands were
vague and overbroad, as well as the fact that the requested information implicated the
common interest privilege. Dkt. No. 244. Defendants then replied to those assertions. Dkt.
No. 248. By Text Order dated October 24, 2017 the Court directed that the Plaintiffs provide
the Court with copies of the disputed communications for an in camera review. Dkt. No.
255. That documentation was provided to the Court in several forms, with the final delivery
being made on January 17, 2018.
The contours of the common interest privilege are specifically set forth in Lapointe
v. Target Corporation, 2017 WL 1397317 (N.D.N.Y. March 6, 2017), and need not be
restated. Ultimately is not necessary for the Court to identify each of the communications
which falls within the common interest privilege (and many do not), because having
reviewed the entirety of the in camera submissions, the Court finds that none the
communications are relevant to this FLSA case. The vast majority of the communications
2

This Letter refers as well to other requests to compel certain discovery, which was the subject of a separate
formal Motion, and which has been addressed by way of a separate Order. Dkt. Nos. 267 & 306.

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Case 1:12-cv-00584-NAM-DJS Document 310 Filed 03/29/18 Page 3 of 3

discuss the deposition process; what to bring; what the wear; the heat in the deposition room;
and other more generalized advice. A few of the documents do relate to communications
between Plaintiff Jan Holick and others concerning the existence of the class action lawsuit
and their ability to join it, as well as the contact information for the Plaintiff’s attorneys, but
once again none of these communications are relevant to the disputed facts of this case. As
a result of the in camera review, the Court concludes that the requested communications are
D

not proportionally relevant and, in some cases, privileged, and therefore will not compel their
production.
WHEREFORE, it is hereby
ORDERED, that Defendants Motion to Compel (Dkt. No. 242) is denied, and it is
further
ORDERED, that the Plaintiffs counsel retrieve from the Court’s Court Room Deputy,
Maria Blunt, the print out of disputed communications, and maintain those documents for
the pendency of the present action, and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties
to this action.
SO ORDERED.

Date: March 29, 2018
Albany, New York

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