Towner v. County of Tioga et al
Filing
147
DECISION AND ORDER granting in part Pltf's 139 Motion to compel discovery and granting Defts' 145 Cross Motion to Compel discovery. Signed by Magistrate Judge David E. Peebles on 2/26/18. (sfp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
____________________________________
RUSSELL D. TOWNER,
Plaintiff,
Civ. Action No.
3:15-CV-0963 (GLS/DEP)
v.
COUNTY OF TIOGA, et al.,
Defendants.
____________________________________
APPEARANCES:
OF COUNSEL:
FOR PLAINTIFF:
BENJAMIN LAW OFFICE
P.O. Box 607
126 Riverside Drive
Binghamton, NY 13902-0607
RONALD R. BENJAMIN, ESQ.
FOR DEFENDANTS:
FRANK MILLER LAW OFFICE
6575 Kirkville Rd.
East Syracuse, NY 13057
FRANK W. MILLER, ESQ.
CHARLES C. SPAGNOLI, ESQ.
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
DECISION AND ORDER
This is an action brought by plaintiff Russell D. Towner, who initially
filed the action pro se but is now represented by counsel, against
defendants Tioga County, Kirk O. Martin, Patrick Hogan, Wayne Moulton,
and C. J. Alexander, asserting various state and federal claims, including
false arrest and imprisonment, and malicious prosecution.
Plaintiff has moved for an order compelling defendants to produce
certain discovery withheld by defendants on the basis of claims of attorney
work product and the attorney-client privilege. See generally Dkt. No. 139.
By cross motion, defendants have moved for an order compelling plaintiff
to respond to certain document requests dated September 29, 2016. See
generally Dkt. No. 145. For the reasons that follow, I conclude that
plaintiff's motion should be granted in part, and defendants' motion should
also be granted.
I.
BACKGROUND
According to the allegations contained in the operative complaint,
from February 2014 through May 2014, plaintiff was incarcerated in the
Tioga County Jail, located in Owego, New York. Dkt. No. 122 at 2. While
confined in that facility, on March 26, 2014, plaintiff wrote to a Tioga
County assistant district attorney to warn her that his fellow inmate, David
Nugent, was plotting to murder her. Id. at 2-3.
In April 2014, defendant Kirk O. Martin, the District Attorney for
Tioga County, arranged for plaintiff to meet with defendants Patrick Hogan
2
and Wayne Moulton, two investigators employed by the Tioga County
Sheriff’s Department to discuss the matter. Dkt. No. 122, at 3. Plaintiff was
interviewed by defendants Hogan and Moulton on April 10, 2014, in the
presence of Towner's criminal defense attorney. Id. at 3. Plaintiff alleges
that after Investigator Hogan told him he would be “acting as an agent of
the police and nothing you say or do can be used against you,” Towner
agreed to cooperate in securing evidence against Nugent. Id. at 4-5. On
the same day, plaintiff “lure[d]” Nugent into the jail’s law library to discuss
the threats that he was making. Id. at 4.
One week later, plaintiff wrote to Investigator Moulton and advised
that “a lot has happened since we [last] spoke[.]” Dkt. No. 122 at 4. In that
communication, plaintiff also stated that “I’ve never had any intention of
being involved with any of Nugent’s schemes at all; merely trying to get
bailed out and get myself into a program to get my life together in hopes of
a better future and that the court would take everything into
consideration[.]” Id. According to plaintiff, defendants Martin, Hogan, and
Moulton were “all aware” that plaintiff was merely acting as an “agent of
the police[,]” and that he was not conspiring to murder an assistant district
attorney. Id.
On May 8, 2014, Nugent's wife posted bail to secure plaintiff's
3
release from custody. Dkt. No. 122 at 4. Following his release, plaintiff
was subsequently arrested for the crime of conspiracy in the second
degree, in violation of N.Y. Penal Law § 105.15, and was accused of
conspiring to kill the assigned district attorney. Id. Those charges were
ultimately dismissed. Id. at 5-6.
As a result of the foregoing, plaintiff alleges that he was falsely
arrested, and maliciously prosecuted, and that his due process rights were
violated. Dkt. No. 122.
II.
PROCEDURAL HISTORY
Plaintiff, commenced this matter in Tioga County Supreme Court.
Dkt. No. 1. On August 5, 2015, defendants removed the action to this
court pursuant to 28 U.S.C. §§ 1331, 1441(a). Dkt. No. 2. By text order
dated February 12, 2016, the court subsequently granted plaintiff's motion
to proceed in forma pauperis. Dkt. No. 44. Plaintiff's present counsel
entered an appearance in the action on February 1, 2016. Dkt. No. 38.
A.
Plaintiff’s Discovery Demands
During the course of discovery, plaintiff served a demand for
document production pursuant to Federal Rule of Civil Procedure 34. In it,
he requested that defendants produce the following documents:
1.
The entire investigative file in the case of
People v. Russell D. Towner, Conspiracy 2nd
4
Degree including any evidence taken into
custody in the course of said investigation, all
communications whether in email or other
format, any videotapes or other films or audio
recordings, made in the course of the
investigation.
2. All correspondence, emails, and any other
communication between defendant Kirk Martin
and any other individual, corporation or entity
which mention Russell D. Towner from March
2014 to present.
3. All correspondence, emails, and any other
communication between defendant Patrick
Hogan and any other individual, corporation or
entity which mention Russell D. Towner from
March 2014 to present.
4. All correspondence, emails, and any other
communication between defendant Wayne
Moulton and any other individual, corporation
or entity which mention Russell D. Towner
from March 2014 to present.
5. All correspondence, emails, and any other
communication between defendant C.J.
Alexander and any other individual,
corporation or entity which mention Russell D.
Towner from March 2014 to present.
Dkt. No. 139-3 at 4-5. In response to this demand, defendants’ counsel
provided a privilege log, dated November 3, 2016, in which defendants
advised that the following documents had been withheld from disclosure
as privileged attorney-client communications, protected work product,
and/or materials prepared in anticipation of litigation:
5
Date
5/12/14
2/23/2015
6/1/2015
11/12/2015
6/30/2016
All relevant
dates
Document or Documents
Basis for Withholding
Hand written notes to the file by
Attorney work product
Kirk Martin
E-mail from Judith Quigley to
Attorney - client
Gary Howard, Kirk Martin, Eric
privilege
Gartenman, C. J. Alexander,
Wayne Moulton, Cheryl Mancini
E-mail from Judith Quigley to
Attorney - client
Kirk Martin
privilege
E-mail from Judith Quigley to
Attorney - client
Gary Howard, Kirk Martin, Chris privilege/attorney work
Silvestri
product
E-mail from Cheryl Mancini to
Attorney - client
Kirk Martin, Rita Basile, Carola
privilege/attorney work
Kovalovsky
product/trial preparation
All e-mails and correspondence
Attorney - client
by and between the Law Firm
privilege/attorney work
of Frank W. Miller (Frank Miller, product/trial preparation
Bryan Georgiady, Richard
Graham) and Cheryl Mancini,
Kirk Martin, Gary Howard,
Wayne Moulton, C. J.
Alexander, Patrick Hogan, and
Eric Gartenman
Dkt. No. 139-2 at 2-3 (footnotes omitted).
B.
Defendants' Discovery Demands
On September 29, 2016, defendants served a second document
demand pursuant to Federal Rule of Civil Procedure 34, in which they
demanded the production of the following documents:
1. Produce each and every document in Plaintiff’s
possession authored by Allen Stone, Esq. and
issued or delivered to KIRK O. MARTIN from March
1, 2014 through and including September 15, 2014
that relates or, pertains to, or describes any of the
6
events, persons or matters set forth in Plaintiffs
Amended Complaint.
2. Produce each and every document authored by
David Nugent that relates to, pertains to, or
describes any of the events, persons or matters set
forth in Plaintiff's Amended Complaint.
3. Produce each and every document authored by
Ashley Nugent that relates to, pertains to, or
describes any of the events, persons or matters set
forth in Plaintiffs Amended Complaint.
4. Produce each and every document authored by
the Plaintiff and issued or delivered to David Nugent
that relates to, pertains to, or describes any of the
events, persons or matters set forth in Plaintiffs
Amended Complaint.
5. Produce each and every document authored by
the Plaintiff and issued or delivered to Ashley Nugent
that relates to, pertains to, or describes any of the
events, persons or matters set forth in Plaintiff’s
Amended Complaint.
6. Produce each and every document Plaintiff
intends to introduce into evidence at the trial of this
action.
Dkt. No. 145-2 at 3-4. According to defendants' counsel plaintiff did not
respond or otherwise object to defendants’ demand. Dkt. No. 145-1 at 2.
C.
Discovery Motion Practice
By letters dated December 29, 2017 and January 10, 2018, the
parties requested permission from the court to file motions to compel;
those request were granted on January 11, 2018. Dkt. No. 127, 131. On
7
January 24, 2018, plaintiff filed a motion to compel defendants to produce
all of the documents listed on defendants' privilege log, including certain
hand written notes and emails, and challenging defendants' decision to
withhold documents in issue on various grounds. See generally Dkt. No.
139.
Defendants responded to plaintiff’s motion on February 13, 2018,
adhering to their position that the disputed documents are not
discoverable because they were shielded by the work product doctrine
and/or the attorney-client privilege. See generally Dkt. No. 145. Pursuant
to the court’s text order dated February 12, 2018, defendants have
produced five of the disputed documents for in camera inspection by the
court. In addition, on February 12, 2018, defendants cross-moved to
compel plaintiff to respond their outstanding document demands. See
generally Dkt. No. 145. Plaintiff has not responded to defendants' cross
motion.
The pending motions have been taken on submission, and are now
ripe for determination.
III.
DISCUSSION
A.
Work Product Doctrine
8
Defendants invoke the work product doctrine as a means to shield
(1) handwritten notes by defendant Martin, dated May 12, 2014, (2) an email dated November 12, 2015, and (3) an e-mail dated June 30, 2016. 1
Dkt. No. 139-2. Defendants also invoke the doctrine to shield all emails
and correspondence among various attorneys with Law Firm of Frank W.
Miller, defendants, and former defendants. Id.
Defendants contend that these documents are not discoverable
because plaintiff has not demonstrated the requisite substantial need and
undue hardship necessary to overcome the protection of the doctrine. Dkt.
No. 145-4 at 5-10. For his part, plaintiff argues that the withheld
documents are “relevant,” and speculates that, at least with respect to
defendant Martin’s handwritten notes, they are “likely [to] include
information leading up to the [criminal] charge” against plaintiff. Dkt. No.
139-4.
Rule 26(b)(3) of the Federal Rules of Civil Procedure, which codified
the common law work-product doctrine articulated in Hickman v. Taylor,
329 U.S. 495 (1947), provides that, "[o]rdinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation
1
Defendants also claim that the attorney-client privilege shields the latter two
documents from disclosure. See Dkt. No. 139-2.
9
or for trial by or for another party or its representative[.]" Fed. R. Civ. P.
26(b)(3); United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998).
The doctrine "preserve[s] a zone of privacy in which a lawyer can prepare
and develop legal theories and strategy 'with an eye toward litigation,' free
from unnecessary intrusion by his adversaries." Adlman, 134 F.3d at 1196
(quoting Hickman, 329 U.S. at 510-11); see Schaeffler v. U.S., 806 F.3d
34, 43 (2d Cir. 2015).
A document or "tangible thing[]" is not properly characterized as
work product unless, "'in light of the nature of the document and factual
situation in the particular case, the document can fairly be said to have
been prepared or obtained because of the prospect of litigation.'" Aldman,
134 F.3d at 1202 (quoting Charles Alan Wright, et al., Fed. Practice &
Procedure § 2024 (1994)). Importantly, there is no protection for materials
"that would have been created in essentially similar form irrespective of
the litigation" or were "prepared in the ordinary course of business."
Aldman, 134 F.3d at 1202. "Even if such documents might also help in
preparation for litigation, they do not qualify for protection because it could
not fairly be said that they were created 'because of' actual or impending
litigation." Id.; see U.S. v. Constr. Prods. Research, Inc., 73 F.3d 464, (2d
Cir. 1996).
10
The party invoking the work product “privilege bears the heavy
burden of establishing its applicability.” In re Grand Jury Subpoena Dated
July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007). Because the work product
doctrine is a qualified privilege, the materials may still be discoverable if
"they are otherwise discoverable under Rule 26(b)(1)" and the party
seeking the materials "shows that it has substantial need for [them] to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(i-ii); see
Aldman, 134 F.3d at 1197.
With this framework in mind, I readily conclude that defendants have
failed to sustain their burden of demonstrating that any of the withheld
materials were prepared “because of” litigation, such that the work product
doctrine applies. There is no competent evidence before the court to show
that the documents claimed by defendants to be protected were prepare
principally in anticipation of this litigation. The content of those documents,
as reviewed in camera, alone are not sufficient to meet defendants'
burden. In response to plaintiff’s motion, defendants’ memorandum
appears to assume that the work product doctrine applies merely because
they have asserted its protection, perhaps misconstruing their burden
regarding work product. For example, although defendants assail plaintiff
11
for speculating as to the contents of defendant Martin's notes, they fail to
address whether the notes were created anticipating litigation, and would
not have been prepared in substantially similar form but for the prospect of
litigation.
In light of defendants' failure, there is no need for the court to
address whether plaintiff has made a showing of substantial need for the
documents and an inability to obtain the contents elsewhere without undue
hardship, and I am constrained to reject defendants' work product claim.
See Adlman, 134 F.3d at 1202-03.
Because defendants have failed to sustain their initial burden of
demonstrating that the work product doctrine applies, it does not shield
any of the documents from disclosure. Accordingly, since defendants rely
on this ground as the sole basis to shield defendant Martin's May 12,
2014, handwritten notes from disclosure, those notes must be produced to
plaintiff.
B.
Attorney-Client Privilege
Defendants invoke the attorney-client privilege to shield (1) an e-mail
dated February 23, 2015; (2) an e-mail dated June 1, 2015; (3) an e-mail
dated November 12, 2015; and (4) an e-mail dated June 30, 2016. Dkt.
No. 139-2. In addition, defendants invoke the privilege as a means to
12
shield all emails and correspondence between the Law Firm of Frank W.
Miller to defendants and former defendants. Id.
Defendants argue that these the documents are not discoverable
because they are entirely exempt from disclosure. Dkt. No. 145-4 at 9.
Plaintiff contends that the court should review all of the disputed
documents. Dkt. No. 139-4 at 3.
Since plaintiff's claims arise under federal law, privileges including
the attorney-client privilege are informed by “the principles of the common
law as they may be interpreted by the courts of the United States in the
light of reason and experience.” Fed. R. Evid. 501; Woodward Governor
Co. v. Curtiss Wright Flight Systems, Inc., 164 F.3d 123, 126 (2d Cir.
1999). "The attorney-client privilege is a privilege of common law that is to
be applied 'in light of reason and experience.'" New York Teamsters
Council Prepaid Legal Servs. Plan v. Primo & Centra, 159 F.R.D. 386, 388
(N.D.N.Y. 1995) (quoting United States v. Zolin, 491 U.S. 554, 562,
(1989)); see also Fed.R.Evid. 501. As the Second Circuit has observed,
the "privilege protects communications (1) between a client and his or her
attorney (2) that are intended to be, and in fact were, kept confidential (3)
for the purpose of obtaining or providing legal advice.” United States v.
Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see In re County of Erie, 473 F.3d
13
413, 419 (2d Cir. 2007). In determining whether the attorney-client
privilege applies, a question which involves a fact-intensive inquiry, a court
should remain mindful that the privilege seeks "to encourage full and frank
communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of
justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
As a general matter, the party invoking the attorney-client privilege
must “(i) expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or disclosed
– and do so in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the claim.” Fed. R. Civ. P.
26(b)(5)(A); see also N.D.N.Y. L.R. 7.1(d)(7) (“A party claiming privilege
with respect to a communication or other item must specifically identify the
privilege and the grounds for the claimed privilege. The parties may not
make any generalized claims of privilege.”); Trudeau v. N.Y. State
Consumer Protection Bd., 237 F.R.D. 325, 334 (N.D.N.Y. 2006) (Treece,
M.J.). it is well-established that the party asserting the cloak of the
privilege bears the burden of establishing its essential elements. See von
Bulow ex rel. Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987).
In response to the court's February 12, 2018 text order, Dkt. No.
14
144, defendants have provided the court with the February 23, 2015, June
1, 2015, November 12, 2015, and June 30, 2016 e-mails, which they
contend are protected by the attorney-client privilege. Dkt. No. 139-2. After
a careful review of the first three of these emails, the court finds that each
is protected by the attorney-client privilege. See Tracy v. NVR, Inc., No.
04-CV-6541L, 2012 WL 1067889, at *5-*6 (W.D.N.Y. Mar. 26, 2012)
(citing Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009)); cf.
Buxbaum v. St. Vincent's Health Servs., Inc., No. 3:12CV117 (WWE),
2013 WL 74733, *7 (D.Conn. Jan. 7, 2013) (concluding that although a
litigation hold notice was not shielded by the attorney-client privilege, it
would be shielded by the work product doctrine).
The June 30, 2016 email is another matter, however, inasmuch as
the communication contained therein does not serve the interests that
underscore the attorney-client privilege. Although the email is between a
client and her counsel, the communication is limited solely to a factual
matter; no legal advice is mentioned, much less shared or otherwise
conveyed between the parties. After a careful review of this email, the
court finds that it is not shielded from disclosure by the attorney-client
privilege, and must therefore be produced to plaintiff.
The court turns next to defendants' contention that "[a]ll e-mails and
15
correspondence by and between the Law Firm and Frank W Miller" for
"[a]ll relevant dates" are protected by the attorney-client privilege. Although
plaintiff complains that these communications emails "have not been
identified other than from and to whom they would be sent," I conclude
that while a small amount of detail has been provided, defendants have
nonetheless provided a sufficiently adequate privilege log for the court to
conclude that these materials are presumptively protected by the attorneyclient privilege.
It is the position of this court that parties should not be required to list
on a privilege log, on an ongoing basis, communications between attorney
and client once litigation has commenced. Such a requirement would be a
cumbersome, unwieldy, and ultimately unnecessary task for defendants'
retained counsel, and for that matter plaintiff's attorney, to not only
document every communication between lawyer and client during the
course of the present suit, but consistently update the privilege log with
communications that occurred as the litigation progressed. See e.g.,
UnitedHealthcare of Florida, Inc. v. Am. Renal Assocs. LLC, 2017 WL
6210835 (S.D.Fla. Dec. 7, 2017) ("Parties do not typically seek postlitigation communications of opposing counsel."); Ryan Inv. Corp. v.
Pedregal de Cabo San Lucas, 2009 WL 5114077, at *3 (N.D. Cal. Dec.
16
18, 2009) (denying motion to compel "log of post-litigation counsel
communications and work product" because they are "presumptively
privileged"); Frye v. Dan Ryan Builders, Inc., 2011 WL 666326, at *7
(N.D.W.Va. Feb. 11, 2011) (reasoning that party did not have to produce a
privilege log for its litigation file). Moreover, although plaintiff recites the
legal principles governing the attorney-client privilege, he fails to set forth
a basis for arguing that all or some of such documents do not qualify for
protection.
Accordingly, while the June 30, 2016 e-mail must be produced to
plaintiff, I find that the remaining documents claimed by defendants to be
privileged are not subject to disclosure.
C.
Plaintiff’s Discovery Response
In their motion, defendants urge the court to order plaintiff to respond
to their second request to produce documents, which was served on
September 29, 2016 and, they claim, remains outstanding, noting that any
potential objections to the request have long since been waived. Dkt. No.
145-4 at 3-5. Defendants further argue that the court should award
attorney's fees and expenses pursuant to Rule 37(a)(5)(A) of the Federal
Rules of Civil Procedure. Id. at 5. As was previously noted, plaintiff has not
filed any response to defendants' cross motion.
17
Rule 34(a)(1) provides that a party may make a demand to produce
any designated, relevant documents that are in the “possession, custody,
or control” of the party to whom the request is served. Fed.R.Civ.P.
34(a)(1). Generally, “[t]he party to whom the request is directed must
respond in writing within [thirty] days after being served.” Fed.R.Civ.P. 34
at 34(b)(2)(A). “A party seeking discovery may move for an order
compelling an answer, designation, production, or inspection” if, inter alia,
“a party fails to respond that inspection will be permitted—or fails to permit
inspection—as requested under Rule 34.” Fed.R.Civ.P. 37(a)(3)(B)(iv). As
one court has observed, "a complete failure [to respond to discovery
demands] strikes at the very heart of the discovery system, and threatens
the fundamental assumption on which the whole apparatus of discovery
was designed, that in the vast majority of instances, the discovery system
will be self-executing." Doe v. Mastoloni, 307 F.R.D. 305, 308-09 (D.
Conn. May 22, 2015) (quoting 7 Moore's Federal Practice 3d. § 37.90
(Matthew Bender ed.)).
In this instance, the discovery request at issue was served on
September 29, 2016, and the thirty-day time period to respond has long
since expired. When defendants' called plaintiff's counsel's attention to this
fact, instead of providing a response, he invited defendants to make the
18
present cross motion. Given plaintiff's failure to respond to plaintiff's
discovery demand, much less provide an explanation on the present
motion as to why a response was not served, the court concludes that
plaintiff has waived any objections that he may asserted. Accordingly,
conclude that defendants' motion to compel must, therefore, be granted.
Turning next to defendants' contention that they should be awarded
attorney's fees and expenses in connection with this motion, Rule
37(a)(5)(A) provides that if a motion to compel is granted, the court “must,
after giving an opportunity to be heard, require a party or deponent whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant's reasonable expenses incurred in
making the motion, including attorney's fees.” However, the court should
not order payment if, inter alia, the opponent's "nondisclosure . . . was
substantially justified" or "other circumstances make an award of expenses
unjust.” Fed.R.Civ.P. 37(a)(5)(A)(ii)-(iii) (emphasis added); see also
Underdog Trucking, L.L.C. v. Verizon Services Corp., 273 F.R.D. 372
(S.D.N.Y. Mar. 7, 2011) (observing that a finding of bad faith is not
required as a precondition of an award under Rule 37(a)(5)(A)).
There are at least two circumstances before the court that would
make an award of expenses unjust in this matter. First, during the
19
November 1, 2016 telephone conference, defendants indicated that their
September 29, 2016 discovery demands remained outstanding, and I
directed plaintiff to provide a response no later than December 1, 2016.
Dkt. No. 102. During a subsequent telephone conference held on
December 15, 2016, the parties reported that my prior text order "ha[d]
been complied with" and that "[d]iscovery [was] nearly complete."
However, on January 10, 2018, defendants' counsel advised:
Defendants served a second set of production
requests on Plaintiff over two years ago, on
September 29, 2015. I can find in our file nothing to
indicate that Plaintiff has ever responded, despite a
follow-up request dated November 3, 2016. Thus,
Defendants may need to file their own motion to
compel and/or for other relief.
Dkt. No. 131 at 3. Although this could have been an oversight on the part
of defendants' counsel, this confusing the inconsistency was not
addressed in defendants' cross motion papers.
Moreover, it does not appear that defendants complied with their
obligation to make a good faith effort to resolve or reduce all differences
relating to discovery prior to seeking court intervention. N.D.N.Y. Local
Rule 7.1(d); see Roy v. DeAngelo, No. 95-CV-822RSP/DS, 1997 WL
567960, *3 (N.D.N.Y. Sept. 12, 1997) (Pooler, J.). In their January 10,
2018 letter to the court, defendants stated:
20
If discovery is to proceed nonetheless, another
subject will need to be reviewed. Defendants served
a second set of production requests on Plaintiff over
two years ago, on September 29, 2015. I can find in
our file nothing to indicate that Plaintiff has ever
responded, despite a follow-up request dated
November 3, 2016. Thus, Defendants may need to
file their own motion to compel and/or for other
relief.
Dkt. No. 131 at 3; see Dkt. No. 145-1 at 2. Thereafter, defendants' counsel
represented to the court that he had made a "good faith [effort] , to resolve
the matter by raising it with plaintiff's counsel through the January 10,
2018 letter and personally at the discovery conference." There is no
reference to defendants' having made anything other than a cursory
attempt at resolving the dispute in the day that led up to the January 11,
2018 telephone conference. Although the court certainly does not
countenance plaintiff's conduct in ignoring his discovery obligations if in
fact that occurred, this does not obviate defendants' need to make a
genuine, good faith effort to resolve a dispute prior to seeking court
intervention.
Despite being made aware that the motions would be taken on a
submit basis, and my prior direction that plaintiff respond to outstanding
discovery by December 1, 20106, plaintiff failed to respond to defendants'
cross motion, depriving the court of any explanation as to why he has not
21
produced the requested discovery. The court does not condone plaintiff's
conduct in failing to respond to defendants' cross motion. Nonetheless, in
view of the circumstances, and since both parties partially prevailed in
connection with their respective motions, I find that the circumstances here
presented would make an award of costs unjust.
IV.
SUMMARY AND ORDER
Plaintiff's discovery dispute presents issues that call upon the court
to apply well-settled privilege rules in order to determine whether the
documents in issue are worthy of attorney-client and/or work product
protection. Having reviewed the documents provided to the court in
camera, as well as defendants' privilege log, I conclude all but two of the
disputed documents are cloaked by the attorney-client privilege. I further
conclude that plaintiff's failure to respond to defendants' discovery
demands was unwarranted and that plaintiff should be compelled to
respond.
Accordingly, it is hereby
ORDERED as follows:
(1) Plaintiff's motion to compel discovery (Dkt. No. 139) is GRANTED
in part.
(2) Within twenty-one days of the date of this decision and order,
22
defendants shall produce to plaintiff the May 12, 2014 handwritten notes of
defendant Kirk O. Martin and the June 30, 2016 e-mail from former
defendant Cheryl Mancini.
(3) In the event an appeal is taken from this ruling to Senior District
Judge Gary L. Sharpe, the foregoing requirement shall automatically be
stayed pending further order of the court.
(4) Defendants' cross motion to compel discovery (Dkt. No. 145) is
GRANTED.
(5) Within twenty-one days of the date of this decision and order,
plaintiff shall respond to defendants' outstanding discovery demands.
(6) No costs or attorney's fees are awarded to any party in
connection with the pending motions.
(7) The clerk of the court is respectfully directed to serve a copy of
this decision and order upon the parties in accordance with this court's
local rules.
Dated:
February 26, 2018
Syracuse, New York
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