Trafalgar Power, Inc. et al v. State Street Bank and Trust Company of Connecticut, N.A.

Filing 82

ORDER - granting in part and denying in part 78 Motion to Compel. Defendants motion to compel responses to interrogatories nos. 12, 14, 15, 18, and 19 of defendants first set of interrogatories, dated March 13, 2009, is GRANTED; Defendants motion to compel plaintiffs response to interrogatories nos. 1 through 11 and 21 through 32, is DENIED, without prejudice; Defendants application for an order compelling plaintiffs response to interrogatories nos. 13, 16, 17, and 20 is DENIED; Defendants ap plication to compel further discovery regarding the investigation being undertaken by Jack Blum, including though not limited to conducting the further deposition of Arthur Steckler and the deposition of Jack Blum, is DENIED, without prejudice; No costs or attorneys fees are awarded to any party in connection with the defendants motion. Signed by Magistrate Judge David E. Peebles on 11/3/09. (mnm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ____________________________________ TRAFALGAR POWER, INC., et al., Plaintiffs, Civil Action No. 5:05-CV-1533 (DNH/DEP) vs. U.S. BANK NATIONAL ASSOCIATION, f/k/a State Street Bank & Trust Company of Connecticut, Defendant. ____________________________________ APPEARANCES: FOR PLAINTIFFS: HARRIS, BEACH PLLC 99 Garnsey Road Pittsford, NY 14534 PAUL J. YESAWICH , III, ESQ. DAVID J. EDWARDS, ESQ. LAURA W. SMALLEY, ESQ. OF COUNSEL:

FOR DEFENDANT: SHIPMAN & GOODWIN LLP One Constitution Plaza Hartford, CT 06103-1919 BOND, SCHOENECK & KING PLLC One Lincoln Center Syracuse, NY 13202 KATHLEEN M. LAMANNA, ESQ. MARK OSTROWSKI, ESQ. JILL M. O'TOOLE, ESQ. BRIAN J. BUTLER, ESQ. COLIN M. LEONARD, ESQ.

FOR NON-PARTY BERNHART SCHOBER BOIES SCHILLER LAW FIRM 333 Main St. Armonk, New York 10504 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER Currently pending before the court in connection with this action is an application by defendant U.S. Bank National Association f/k/a State Street Bank & Trust Company of Connecticut, pursuant to Rule 37 of the Federal Rules of Civil Procedure, compelling discovery. Dkt. No. 78. Defendant's motion raises two issues, the first addressed the sufficiency of responses by plaintiffs Trafalgar Power, Inc., and Christine Falls of New York, Inc., to a set of thirty-two interrogatories served on March 13, 2009. See id. The second issue concerns plaintiffs' assertion of work-product protection surrounding the retention of an individual, identified as Jack Blum, to conduct an investigation regarding the action. Plaintiffs have opposed defendants' motion. Dkt. No. 79. Oral argument was held in connection with defendant's motion during a digitally recorded telephone conference held on October 28, JASON CYRULNIK, ESQ.

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2009. At the close of that telephone conference a bench decision was issued denying the portion of defendants' motion addressing interrogatories nos. 1 through 11 and 21 through 32, as moot, without prejudice, and reserving decision with respect to the remaining issues. A second digitally recorded telephone conference was conducted on October 29, 2009 to address the remaining issues. Based upon the foregoing and the court's bench decisions of October 28 and 29, 2009, which are incorporated herein by reference, it is hereby ORDERED as follows: 1) Defendant's motion to compel responses to interrogatories

nos. 12, 14, 15, 18, and 19 of defendant's first set of interrogatories, dated March 13, 2009, is GRANTED. 2) On or before November 13, 2009, plaintiffs shall provided

proper responses to those interrogatories. In those responses, any reference to a document shall identify such document with sufficient specificity, such as, for example, a bates number, in order to permit defendants to identify the document referenced. 3) Defendant's motion to compel plaintiff's response to

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interrogatories nos. 1 through 11 and 21 through 32, is DENIED, without prejudice. 4) Defendant's application for an order compelling plaintiffs'

response to interrogatories nos. 13, 16, 17, and 20 is DENIED. 5) Defendant's application to compel further discovery regarding

the investigation being undertaken by Jack Blum, including though not limited to conducting the further deposition of Arthur Steckler and the deposition of Jack Blum, is DENIED, without prejudice. 6) In the event that plaintiffs intend to offer at trial any information

developed, directly or indirectly, through the investigation of Jack Blum, that information must be properly and fully disclosed to defendant on or before November 30, 2009. Any evidence developed, directly or indirectly, through the Blum investigation that is not disclosed to the defendant on or before that date will be precluded from admission at trial. 7) In the event of plaintiffs' disclosure on or before November 30,

2009 of information arising out of the Blum investigation, defendant is hereby permitted to conduct additional discovery with regard to the matter, including the further deposition of Arthur Steckler and the deposition of Jack Blum, on or before December 31, 2009, not- withstanding that the

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deadline for fact discovery will have passed prior to that time. 8) Any written documents within plaintiffs' possession, custody or

control pertaining to the Blum investigation and withheld under color of work-product protection must be identified on a privilege log to be served upon defendant in accordance with Rule 26(b)(5) of the Federal Rules of Civil Procedure. 9) No costs or attorney's fees are awarded to any party in

connection with the defendant's motion.

Dated:

November 3, 2009 Syracuse, NY

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