Loguidice v. McTiernan et al

Filing 51

MEMORANDUM-DECISION AND ORDER denying Pltf's 48 Motion for Reconsideration. Signed by Magistrate Judge Christian F. Hummel on 8/3/17. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANDREA D. LOGUIDICE,
Plaintiff,
v.

No. 1:14-CV-1323
(TJM/CFH)

EDWARD MCTIERNAN, STUART BRODY
BENJAMIN CONLON, MARLINE AGNEW,
DEBORAH CHRISTIAN, PHIL LODICO,
MARC GERSTMAN, and JOHN DOES 1-5,
Defendants.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
APPEARANCES:

OF COUNSEL:

BOIES SCHILLER & FLEXNER LLP
30 South Pearl St., 11th Fl.
Albany, New York 12207
Attorneys for Plaintiff

GEORGE F. CARPINELLO, ESQ.
JOHN F. DEW, ESQ.

MICHAEL Y. HAWRYLCHAK, ESQ.
6099 Nott Road
Guilderland, New York 12084
Attorney for Plaintiff
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, New York 12224
Attorneys for Defendants

COLLEEN D. GALLIGAN, ESQ.
LOUIS JIM, ESQ.

MEMORANDUM-DECISION AND ORDER
Presently pending before the Court is plaintiff Andrea D. Loguidice’s (“plaintiff”)
motion to reconsider a portion of the Court’s Memorandum-Decision and Order (“MDO”)

which granted in part and denied in part her motion to compel discovery. Dkt. No. 48. The
motion is limited to seeking reconsideration of the undersigned’s ruling relating to the
waiver of privilege associated with the memorandum written by defendant McTiernan on
August 4, 2014, entitled “Termination of Andrea Loguidice” (hereinafter “McTiernan
Memo”).

Id.

Defendants Edward McTiernan (“McTiernan”), Stuart Brody (“Brody”),

Benjamin Conlon (“Conlon,), Marline Agnew (“Agnew”), Deborah Christian (“Christian”),
Phil Lodico (“Lodico”), and Marc Gerstman (“Gerstman”) (collectively, “defendants,” where
appropriate) oppose the motion. Dkt. No. 49. Nonparties the New York State Department
of Environmental Conservation (“DEC”), The Governor’s Office on Employee Relations
(“GOER”), Maureen Coleman, and Ann Hohenstein (collectively, “non-parties,” where
appropriate), did not file a response. Plaintiff filed a reply. Dkt. No. 50. For the reasons
that follow, plaintiff’s motion for reconsideration is denied.

I. Background
The facts and circumstances surrounding this discovery dispute are outlined in the
Court's August 25, 2016 MDO, and familiarity therewith is assumed. Briefly, in its pertinent
part, the McTiernan Memo discusses McTiernan’s conversations and meetings with
Maureen Coleman (Governor’s Counsel), Anne Hohenstein (DEC’s contact at GOER), Lori
Belgrade and Marc Cadrette (DEC personnel), and Mike Valforte (General Counsel at
GOER). Id.; Dkt. No. 47 at 5. The McTiernan Memo also contains McTiernan’s statement
that,“‘[t]he advice I received was that this error in judgment was serious enough to
warranted [sic] discipline in the case of a full time employee and termination of an
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employee in probation.” Id.
On August 25, 2016, the undersigned issued an MDO in response to plaintiff’s letter
motion requesting assistance in resolving discovery disputes (Dkt. No. 27) and plaintiff’s
motion to compel defendants to provide various testimony and documents. Dkt. No. 41.
As relevant here, the Court held that (1) McTiernan’s discussions with DEC personnel
Belgrade and Cadrette would likely not implicate the attorney-client privilege because they
“would primarily result in non-legal questions [and] such conversations are not privileged”;
(2) McTiernan did not have the authority to waive the DEC’S attorney-client privilege;
(3) Gerstman had the implied authority to waive the DEC’s attorney-client privilege by the
nature of his position; whether it was waived is dependent on the document; and (4) even
if McTiernan did have the authority to waive the attorney-client privilege on behalf of the
DEC or if Gerstman did waive the privilege, this waiver cannot forfeit any privilege that
GOER or the Governor’s Counsel may have had regarding potential legal advice
McTiernan obtained from Coleman, Hohenstein, and Valforte.

Id. at 33-34, 37-39.

Irrespective of the above determination, the undersigned held that plaintiff’s Motion to
Compel, insofar as it related to conversations with DEC personnel, was premature, as
plaintiff failed to proffer questions or document requests before the Court with respect to
any of the conversations McTiernan had with Belgrade and Cadrette. Id. With respect to
legal advice McTiernan sought from GOER and Governor’s Counsel, the motion was
denied. Id.
On September 7, 2016, plaintiff filed this Motion for Reconsideration with regard to
this portion of the MDO, contending that the Court erred in its determination that
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defendants could not be compelled to testify as to conversations McTiernan had with
GOER attorneys and Governor’s Counsel, as well as conversations with DEC personnel
Cadrette and Belgrade. Dkt. No. 48-1. Defendants argue that because McTiernan has yet
to be deposed, “Plaintiff again seeks to obtain a court order with regard to matters that are
premature.” Dkt. No. 49 at 2.

II. Legal Standard
In the Northern District of New York, all motions for reconsideration proceed under
Local Rule 7.1(g).1 The “clearly erroneous” standard of review applies in assessing a
motion for reconsideration. Sumner v. McCall, 103 F. Supp. 2d 555, 558 (N.D.N.Y. 2000).
“Generally, the prevailing rule in the Northern District ‘recognizes only three possible
grounds upon which motions for reconsideration may be granted; they are (1) an
intervening change in controlling law, (2) the availability of new evidence not previously
available, or (3) the need to correct a clear error of law or prevent manifest injustice.’”
People ex rel. Vacco v. Rac Holding, Inc., 135 F. Supp. 2d 359, 362 (N.D.N.Y 2001)
(quoting In re C-TC 9th Ave. P’ship, 182 B.R. 1, 3 (N.D.N.Y. 1995)). These requirements
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Northern District of New York Local Rule 7.1(g) provides:
[m]otions for reconsideration or reargument, unless Fed.R.Civ.P. 60
otherwise governs, may be filed and served no later than TEN
CALENDAR DAYS after the entry of the challenged judgment, order, or
decree. All motions for reconsideration shall conform with the
requirements set forth in L.R. 7.1(a)(1) and (2). The briefing schedule
and return date applicable to motions for reconsideration shall conform to
L.R. 7.1(b)(2) . . . . Motions for reconsideration or reargument will be
decided on submission of the papers, without oral argument, unless the
Court directs otherwise.

N.D.N.Y. L.R. 7.1(g).

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prevent the moving party from simply relitigating issues already decided by the Court. See
Shannon v. Verizon New York, Inc., 519 F. Supp. 2d 304, 306 (N.D.N.Y. 2007). Moreover,
“[t]he standard for granting such a motion is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995). Motions for reconsideration are not favored, and are “‘properly granted only upon
a showing of exceptional circumstances.’” Nakshin v. Holder, 360 F. App’x. 192, 193 (2d
Cir. 2010) (summary order) (quoting Marrero Picardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir.
2004)).

III. Discussion
In support of her Motion for Reconsideration, plaintiff asserts that (1) defendant
Gerstman had the authority to waive the DEC’s attorney-client privilege, and did so when
the McTiernan Memo was provided to plaintiff during discovery; (2) because the privilege
belonged to the DEC, the waiver of the attorney-client privilege includes legal advice that
the DEC received from outside attorneys; the Court erred in concluding that GOER or
Governor’s Counsel must also waive their privilege; and (3) the Court erred in determining
that there was “no waiver of communications with DEC personnel because the
conversations recounted in the Memo were not with lawyers.”

See Dkt. No 48-1.

Defendants argue that plaintiff’s motion seeks to relitigate issues that have already been
decided by the Court. See Dkt. No. 49. Further, defendants maintain that plaintiff’s
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request is premature as McTiernan has not been deposed and no specific deposition
question is pending before the Court. See id.
Plaintiff does not suggest that the first ground on a motion for reconsideration,
intervening change in the controlling law, applies nor has she presented new evidence
which was not previously available in order to implicate the second ground. See Vacco,
135 F. Supp. 2d at 362. Therefore, the only basis for reconsideration is to remedy a clear
error of law or to prevent manifest injustice. See id. This is a demanding standard.
It is not enough . . . that [the moving party] could now make a
more persuasive argument . . . . [M]ere doubt on our part is not
enough to open [up] the point for full reconsideration. The law
of the case will be disregarded only when the court has ‘a clear
conviction of error’ with respect to a point of law on which its
previous decision was predicated.
Sumner, 103 F. Supp. 2d at 558 (quoting Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir.
1981) (internal quotation marks omitted).

The undersigned, therefore, must discern

whether plaintiff has proffered evidence of a clear error of law or merely a point of
dissension with the Court. Id. at 559 (internal citation and quotation marks omitted). After
review of plaintiff’s submissions, the Court determines that she has failed to point to
“controlling decisions or data that the court overlooked” that would require the Court to alter
its decision. See Shrader, 70 F.3d at 257.

A. McTiernan’s Discussions with Belgrade and Cadrette
Plaintiff argues the Court erred in holding “that there was no waiver of
communications with DEC personnel because the conversations recounted in the Memo

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were not with lawyers.” Dkt. No. 48-1 at 2. The Court held that “it would not appear that
those conversations would be privileged, as such conversations would likely involve human
resources issues, not ones that require legal expertise from counsel in his role as an
attorney.” Dkt. No. 47 at 37-38 (emphasis added) (citing Koumoulis v. Indep. Fin. Mktg.
Grp., Inc., 29 F. Supp. 3d 142, 146 (E.D.N.Y. 2014) (“Despite its legal content, human
resources work, like other business activities with a regulatory flavor, is part of the
day-to-day operation of a business; it is not a protected legal activity.”)). The Court’s
conclusion that McTiernan’s conversations with Belgrade and Cadrette were not privileged
was based on the Court’s speculation as to the content of those conversations and that it
“anticipates discussions with personnel would not implicate the attorney-client privilege.”
Id. at 39 (emphasis added). Thus, the Court concluded that McTiernan’s conversations
with Belgrade and Cadrette would not be privileged to the extent that they were based on
non-legal advice. See id. (emphasis added) (“As the undersigned concludes that any
discussions McTiernan had with personnel would primarily result in non-legal questions,
such conversations are not privileged.”) In assessing McTiernan’s statement regarding the
advice he received, the Court stated that “McTiernan collectively refers to the advice that
he received about plaintiff’s conduct” and “it is unclear whether McTiernan is contending
that the recommendations he received to terminate plaintiff were based on the various
advisors’ opinions that plaintiff violated certain laws or whether this advice also was based
on a personnel/human resources reason not directly related to any potential legal
violations.” Id. at 37. The Court, however, ultimately concluded that it could not definitively
rule on this issue because the content of these conversations were not before the Court;
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thereby, the motion was premature. Id. at 39.
Plaintiff has not persuaded the undersigned that the Court engaged in a clear error
of law insofar as it reasonably concluded that plaintiff’s request regarding Belgrade and
Cadrette was premature. Further, as of this writing, McTiernan has not yet been deposed
and there are no questions or document demands before the Court detailing the content
of the conversations with Belgrade and Cadrette and whether they were legal in nature;
therefore, the Court has no factual basis to alter its previous conclusion. Accordingly, as
plaintiff’s request regarding Belgrade and Cadrette is premature, the Court declines to alter
its earlier findings as it relates to this portion of the McTiernan Memo. See id.

B. McTiernan’s Discussions with Coleman, Hohenstein, and Valforte
1. Did Gerstman/DEC Waive the Privilege?
Plaintiff contends that “[t]he DEC, through Gerstman and his counsel, has [ ] waived
the DEC’s privilege with respect to the advice that McTiernan received from outside
counsel and from in-house counsel regarding Plaintiff.” Dkt. No. 48-1 at 4. Plaintiff’s
argument is based on the understanding that the MDO held that (1) defendant Gerstman
had the authority to waive DEC’s privilege; (2) the McTiernan Memo revealed privileged
information; and (3) even if the DEC waived the privilege, its waiver does not amount to a
waiver on behalf of GOER and the Governor’s Counsel. Id. at 3-4.
There is no dispute that the undersigned found that Gerstman had the implied
authority to waive the privilege by nature of his position as the Executive Deputy
Commissioner. Dkt. No. 47 at 34, 36. However, the Court did not conclude that the
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McTiernan Memo contained privileged information and that the DEC waived its privilege
with respect to that content.

Regarding McTiernan’s conversations with Coleman,

Hohenstein, and Valforte, the Court held that:
[i]t is at least arguable . . . that discussions with GOER would
involve opinions on whether plaintiff violated certain ethics
rules or laws. If it is the case that McTiernan, Hohenstein,
Coleman, and Valforte discussed whether plaintiff’s conduct
amounted to violations of laws or regulations, such request or
receipt of legal advice would appear to be an attorney-client
privileged matter.
Id. at 38 (emphasis added).
Thus, the Court never concluded the privilege was waived, in part because it could
not assess whether McTiernan’s conversations with Coleman, Hohenstein, and Valforte
were privileged on the basis of McTiernan’s statement in the Memo.2

2. Waiver of Privilege by GOER and Governor’s Counsel
Plaintiff argues that the Court erred in concluding that, even if Gerstman or
McTiernan waived the attorney-client privilege on behalf of the DEC by releasing the
McTiernan Memo, the DEC’s waiver did not amount to a waiver on behalf of GOER and
Governor’s Counsel. See Dkt. No. 48-1 at 5-7. It is well-settled that the attorney-client
privilege belongs solely to the client, not to the attorney. See, e.g., U.S. v. Goldberger &
Dublin, P.C., 935 F.2d 501, 504 (2d Cir. 1991). Plaintiff correctly observes that the DEC
is the client. To the extent that the Court erred in concluding that the DEC cannot waive

2

The Court addresses plaintiff’s arguments with respect to the Court’s holding regarding waiver
by GOER and Governor’s Counsel in the following subsection.

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the privilege with respect to GOER and Governor’s Counsel, such a finding was harmless
for the reasons that follow.
As indicated, the Court did not conclude, as plaintiff asserts, that the DEC waived
the privilege with respect to conversations between DEC and GOER and Governor’s
Counsel. See Dkt. 48-1 at 6. The Court noted that the giving of legal advice may implicate
the privilege, but noted that it could not be determined from the McTiernan Memo what
plaintiff discussed with GOER and Governor’s Counsel:
[T]he only waiver that the production of this memo could elicit
is that in connection with legal advice received from within the
DEC. The only DEC contacts he discusses in this memo are
Lori Belgrade and Marc Cadrette from Personnel.
Dkt. No. 47 at 38-39. Here, the Court suggested that it was unclear from the Memo
whether McTiernan’s reference to the “advice” he received was to the advice received from
personnel or from GOER and Governor’s Counsel. Id. at 37; see also Dkt. No. 41-4 at 2.
Thus, based on the statement at issue in the McTiernan Memo it is unclear whether
the recommendation to terminate plaintiff was based on legal opinions from GOER or
Governor’s Counsel or advice from Cadrette and Belgrade from a personnel/human
resources standpoint. See Dkt. No. 47 at 37. Because the content of these conversations
are not before the Court, the Court is unable to decide whether these matters fall within the
gambit of the attorney-client privilege. At the time of this writing, McTiernan has still not
been deposed, and the Court is unable to determine whether the DEC waived the privilege
with respect to conversations between McTiernan, GOER, and the Governor’s Counsel as
the undersigned is not privy to the contents of the conversations; thus, the request is

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premature.3

IV. Conclusion
Plaintiff has not persuaded the undersigned that the Court engaged in a clear error
of law. The Court agrees with defendants that her request remains premature, as plaintiff’s
motion “seeks to compel responses to questions that have not been asked based upon a
belief that Defendants will raise a claim of privilege that, to date, has not been raised.” Dkt.
No. 49. Plaintiff would be better served by deposing McTiernan and developing the record
as to the conversations between the DEC and GOER and the Governor’s Counsel, rather
than attempting to relitigate issues already decided. See Vento v. Handler, No. 12 Misc.
228 (PGG), 2013 WL 12084505, at *2 (S.D.N.Y. Nov. 25, 2013) (“In seeking
reconsideration of this Court's Order, Plaintiffs' [sic] improperly seek to relitigate issues that
have already been decided.”) (citation omitted). Should the parties come before the Court
with deposition questions regarding McTiernan’s conversations with DEC personnel,
GOER and the Governor’s Counsel, the Court will properly address them at that time.
Therefore, because the Court lacks sufficient information before it as to the contents of the
conversation between McTiernan and Coleman, Hohenstein, and Valforte, it cannot
conclude whether the information in the McTiernan Memo is privileged. As the Court
committed no clear error of law, plaintiff’s motion for reconsideration is denied.
WHEREFORE, for the reasons stated herein, it is hereby

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Should plaintiff bring the content of these conversations before the Court, the Court will then
address her concerns under the lens of whether the client, DEC, waived the privilege.

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ORDERED, that plaintiff’s Motion for Reconsideration of this Court’s August 25,
2016 Memorandum-Decision and Order (Dkt. No. 48-1) is DENIED; and it is
ORDERED, that the Clerk of the Court serve this Memorandum-Decision and Order
on parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 3, 2017
Albany, New York

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