United States of America, ex rel. John Rubar v. The Hayner Hoyt Corporation, et al

Filing 108

MEMORANDUM-DECISION AND ORDER granting in part and denying in part Pltf's 86 Motion to Compel; denying Deft's 89 Motion for Protective Order. Ordered that pursuant to the terms of this Memorandum-Decision and Order, parties must comply with the discovery deadlines as stated. Signed by Magistrate Judge Christian F. Hummel on September 18, 2018. (jdp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA, ex rel.
JOHN RUBAR,
Plaintiff/Relator,

5:14-CV-830
(GLS/CFH)

v.
THE HAYNER HOYT CORPORATION,
JEREMY THURSTON, GARY THURSTON,
LEMOYNE INTERIORS, DOYNER INC.,
RALPH BENNETT, and 229 CONSTRUCTORS,
LLC,
Defendants.

APPEARANCES:

OF COUNSEL:

U.S. Department of Justice
445 Broadway
James T. Foley Courthouse
Albany, New York 12201
Attorneys for Government

ADAM J. KATZ, ESQ.

Sadowski Katz LLP
11 Broadway, Ste. 615
New York, New York 10004
Attorneys for plaintiff/relator

RAPHAEL KATZ, ESQ.
ROBERT W. SADOWSKI, ESQ.

Hancock Estabrook, LLP
1500 AXA Tower I
100 Madison Street
Syracuse, New York 13202
Attorneys for plaintiff/relator

JOHN G. POWERS, ESQ.
PAUL J. TUCK, ESQ.

Greenberg Traurig, LLP, DC Office
2101 L Street N.W.
Washington D.C., 20037
Attorneys for defendants/
Intervenor/Counterclaimant

MELISSA P. PRUSOCK, ESQ.

Barclay Damon LLP
One Park Place
300 South State Street
Syracuse, New York 13202-2078
Attorneys for defendants/
Intervenor/Counterclaimant

JON P. DEVENDORF, ESQ.
KAYLA A. ARIAS, ESQ.

CHRISTIAN F. HUMMEL,
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION AND ORDER
I. Introduction
Presently pending1 before the undersigned is plaintiff/relator John Rubar’s Motion
to Compel, and defendants’ cross motion for a protective order. Dkt. Nos. 86, 89. 2 Each
party opposed their adversaries’ motions. Dkt. Nos. 86, 89, 97. W ithin their opposition to
plaintiff/relator’s Motion to Compel, defendants cross-moved for a protective order
pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26. Dkt. No. 89.
In a Memorandum-Decision and Order dated January 25, 2018, the Court granted
in part and denied in part defendants’ April 29, 2016 Motion to Dismiss, dismissing
(1) plaintiff’s retaliation claim pursuant to the False Claims Act (“FCA”) against defendants
Thurston, Bennet, Leymone, and 229 Constructors, LLC (4th Cause of Action);
(2) plaintiff’s claim for negligent infliction of emotional distress against all defendants (7th
Cause of Action); and (3) plaintiff’s claim for tortious interference with a contract against
all defendants (9th Cause of Action). Dkt. No. 98.

1

Also pending is plaintiff’s letter motion to Compel Discovery and hold Non-party Dannible &
McKee, LLP in contempt. Dkt. No. 74. That letter motion will be addressed in a separate decision.
2

Unless otherwise indicated, this Court’s citation to page numbers is to the pagination generated
by CM/ECF in the page headers, not to the page numbers assigned by the parties.

2

The Court will discuss the facts relating to the underlying qui tam action only to the
extent necessary to review the motions presently at issue. For a more extensive review of
the facts and procedural history underlying this case, reference is made to the operative
complaint and to this Court’s January 25, 2018 Memorandum-Decision and Order. Dkt.
Nos. 95, 98.

II. Legal Standard
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense – including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity and
location of persons having knowledge of any discoverable matter.” FED. R. CIV. P.
26(b)(1). Further, “[i]nformation within this scope of discovery need not be admissible in
evidence to be discoverable.” Id. “Under this provision, the bounds of permissible
discovery in a civil action are generally broad.” T.H. by Shepherd v. City of Syracuse,
5:17-CV-1081 (GTS/DEP), 2018 WL 3738945, at *2 (N.D.N.Y. Aug. 7, 2018) (citing
Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 114 (2d Cir.
1992)). “Significantly, these bounds are not cabined by rules governing admissibility of
evidence at trial.” Id. (citing Mohr v. Sec. Credit Servs. LLC, No. 14-CV-0982, 2016 W L
6638198, at *1 (N.D.N.Y. July 6, 2016.))

The party seeking to compel discovery bears the initial burden
of demonstrating relevance of the requested materials to a
claim or defense in the case. This notwithstanding, courts
place a strict burden on a party resisting discovery, as “[a]n objection to a document re
specifics of the objection and how that objection relates to the documents being
3

demanded.” “The burden is on the party resisting discovery to clarify and explain precisely
why its objections are proper given the broad and liberal construction of the discovery
rules found in the Federal Rules of Civil Procedure.”
Member Services, Inc. v. Security Mut. Life Ins., 3:06-CV-1164 (TJM/DEP), 2007 WL
2907520, at *4 (N.D.N.Y. Oct. 3, 2007) (internal citations omitted). To meet the initial
burden, the moving party must "demonstrate at least the possibility of a nexus between
the information sought and the claims or defenses of a party[,]" which is a "relatively low
threshold." Id. (citing Condit v. Dunne, 225 F.R.D. 100, 106) (S.D.N.Y. 2004), quoting
John Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014));
see also Alaska Elec. Pension Fund v. Bank of Am. Corp., 14-CV-7126 (JMF), 2016 WL
6779901, at *2 (S.D.N.Y. Nov. 16, 2016) (noting that moving party must show “any
possibility of relevance sufficient to compel discovery.”) (quoting Royal Park Investments
SA/NV v. Deutsche Bank Nat'l Trust Co., 14-CV-4394 (AJN) (BCM), 2016 WL 4613390, at
*6-7 (S.D.N.Y. Aug. 31, 2016)).
“The specific proportionality factors to be considered are ‘the importance of the
issues at stake in the action, the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the discovery in resolving
issues, and whether the burden or expense of the proposed discovery outweighs its likely
benefit.’” Lapointe v. Target Corp., No. 16-CV-216 (GTS/CFH), 2017 WL 1397317, at *2
(N.D.N.Y. Mar. 6, 2017) (quoting FED. R. CIV. P. 26(b)(1)). Further, Fed. R. Civ. P. 26(c)
provides that any party, for good cause, may seek a protective order to preclude or limit
discovery “to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense[.]” FED. R. CIV. P. 26(c). However, general objections as to
4

relevance, over breadth, or burden are insufficient to exclude discovery demands under
this standard. See North Shore-Long Island Jewish Health Systems, Inc. v. MultiPlan,
Inc., 325 F.R.D. 36, 48 (E.D.N.Y. 2018) (quoting Lindsey v. Butler, No. 11 CIV. 9102,
2017 WL 4157362, at *2 (S.D.N.Y. Sept. 18, 2017)). “‘Rather, a party resisting discovery
has the burden of showing specifically how, despite the broad and liberal construction
afforded to the federal discovery rules, each interrogatory is not relevant or how each
question is overly broad, burdensome or oppressive.” Id. (citing Lindsey, 2017 WL
4157362, at *3) (additional citation omitted). However, the Second Circuit has cautioned
that "according the discovery rules liberal treatment does not license opposing counsel to
discover anything and everything." In re Six Grand Jury Witnesses, 979 F.2d 939, 943
(2d Cir. 1992).

III. Arguments
Plaintiff contends that (1) defendants have failed to produce several categories of
documents, (2) the documents that have been produced have not been provided in a
proper format such that they can “determine whether all responsive documents have been
produced,” and (3) defendants are attempting to “pre-screen Plaintiff’s depositions.” See
generally Dkt. No. 86-1. Defendants generally argue that they have properly:
(1) produced electronic records responsive to the categories plaintiff claims to not have
received, (2) objected to several categories of requests on the grounds of relevance or
privilege, and (3) sought to limit depositions “for efficiency.” See generally Dkt. No. 89-

5

14.3 Defendants request a protective order be issued “[b]ased on the lack of relevance of
the qui tam documents, among others, the financial burden associated with reviewing and
producing these documents, and Mr. Rubar’s non-existent need for the documents in light
of the settlement agreement and other documents that have been produced[.]” Id. at 6. 4

A. Format of Disclosures
Plaintiff provides that defendants’ disclosures “are organized in manner that
provide[s] no notice as to whether responsive materials have been produced on a
request-by-request basis. Defendants have failed to identify which Bates stamp range
answers which specific document requests.” Dkt. No. 86-1 at 16. Plaintiff contends that
“Courts have determined that the appropriate remedy is to require the noncompliant party

3

Further, defendants contend that plaintiff has withheld documents based on relevancy
objections and “has also yet to supplement his production to address certain of the deficiencies pointed
out by Defendants with respect to Plaintiff’s written objections.” Dkt. No. 89-14 at 11. Defendants do not
appear to seek the Court’s intervention relating to any responses from plaintiff at this time, and instead
suggest that they “intend to work with Plaintiff in good faith to address Defendants’ disagreement with
certain of Plaintiff’s written responses,” but note that “further motion practice may be necessary if Plaintiff
intends to stand by certain of his objections. Defendants only mention Plaintiff’s discovery responses now
to communicate issues with discovery responses (and potential disputes) are ongoing for both sides.” Id.
at 11-12; see also Dkt. No. 89-1 at 11 ¶¶ 63-65. Confusingly defendants’ brief also requests that plaintiff
“be compelled to respond more fully to certain of their demands.” Id.; Dkt. No. 89-14 at 6. However,
because – beyond that sentence in the “preliminary statement” – there is no argument seeking to compel
plaintiff to respond to certain demands and no argument within the cross-motion, and due to the conflicting
statements in the attorney declaration, the Court is of the position that there is no argument to compel
plaintiff to respond to discovery demands before the Court.
4

Defendants provide that, “[i]n January 2017, Mr. Rubar served three different sets of document
demands on Defendants, asking for a total of 117 categories of documents, excluding subparts. (Dkt. No.
86-3). Specifically, Mr. Rubar served a set of demands on (1) Doyner, which contained 62 categories of
document requests, with numerous subparts, (2) 229 Constructors, which contained 13 categories of
document requests, with numerous subparts, and (3) Hayner Hoyt and the Thurstons, which contained 42
categories of document requests, with numerous subparts.” Dkt. No. 89-14 at 9. After serving objections
in February 2017, defendants “made an initial production of documents on March 10, 2017,” and counsel
for plaintiff and defendants “agreed that supplemental productions were necessary.” Id. Defendants
indicate that parties “exchanged letters about their respective positions relative to documents not
produced by the other side” in July 2017 and sometime thereafter supplemented the production. Id. at 10.

6

to provide requested documents with Bates stamp range organized according to each
individual request,” and seeks an Order directing defendants “to respond to each
individual request by designating, by Bates number, which of the produced documents
respond to which of Plaintiff’s various document requests.” Id. at 17.
Defendants contend that their formatting of the production is sufficient because,
after defendants’ initial production, “Defendants’ counsel caused thousands of pages of
collected electronic records to be loaded into a Relativity database.” Dkt. No. 89-14 at 14.
Thus, defendants argue that plaintiff “receiv[ed] documents in the format requested.” Id.
Defendants suggest that plaintiff unfairly “criticizes Defendants for not identifying by bates
number which numbered document is responsive to which of Plaintiff’s more than 100
requests.” Id. Defendants argue that their production complies with Rule 34 as they
produced the documents – “roughly 7700 pages” – “in the electronic form in which they
were originally maintained, with the parent/child relationship between emails in a series,
and emails with attachments, preserved.” Id. at 15. Were defendants to identify “by bates
number which document is responsive to which of Plaintiff’s more than 100 requests,”
they argue they would be required to “undertake the expense of having documents
reviewed and coded for production in a way most convenient for Plaintiff’s counsel, and
then re-reviewed once bates numbers are added to further convenience Plaintiff at
Defendants’ expense.” Id. Because the “electronic records were produced as
maintained, and in a reasonably usable form,” defendants assert that they complied with
Rule 34 and should not be compelled to undergo the expense or burden of producing the
electronic records in this manner. Id.
7

Defendants cite Rutherford v. PaloVerde Health Care District, ED CV13-12470JAK
(Spx), 2014 WL 12633523 (C.D. Ca. Apr. 25, 2014), from the Central District of California,
wherein the Court declined to order the plaintiff, the nonmoving party, to produce
electronic records by “identify[ing] by Bates number which documents are responsive to
the requests,” holding that Rule 34 requires only that electronically-stored discovery be
produced as they are “ordinarily maintained.” Id. at *4. The Rutherford Court further held
that Rule 34 “does not require the producing party to identify in its written response to
each document request exactly which page is responsive to each request.” Id. Instead,
the Court determined that Rule 34 “contains a much more general requirement: that the
documents be organized and labeled to correspond to the requests’ ‘categories.’” Id.
This Court, addressing a similar issue, has noted that there does not appear to be
any “bright line guidance concerning the level of detail required when a producing party
has opted to produce documents as they are ordinarily maintained.” Pass & Seymour,
Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 (N.D.N.Y. 2008). In Pass & Seymour, the Court
recounted holdings of other courts within the Circuit which held that a party complies with
Rule 34 where there are general categories of documents. Id. The Court held that
production of “405,367 pages of documents devoid of any index or table to help illuminate
the organizational regime utilized by [plaintiff] falls short of meeting the obligations
imposed under Rule 34(b)(2).” Id. Further, the Court held
a party who in response to a discovery demand has chosen to
produce documents as they are ordinarily maintained must do
just that—produce the documents organized as they are
maintained in the ordinary course of producing party's
business, with at least some modicum of information regarding
how they are ordinarily kept in order to allow the requesting
8

party to make meaningful use of the documents. At a
minimum, that means that the disclosing party should provide
information about each document which ideally would include,
in some fashion, the identity of the custodian or person from
whom the documents were obtained, an indication of whether
they are retained in hard copy or digital format, assurance that
the documents have been produced in the order in which they
are maintained, and a general description of the filing system
from which they were recovered.
Id. at 337. The Court declined to direct the plaintiff to associate each document with its
demand, but required the plaintiff “to provide some additional information regarding the
organization of those documents in the ordinary course of business.” Id. at 338.
Here, it is unclear whether defendants have produced the electronic discovery as it
is ordinarily maintained. Defendants’ brief claims both that the records “were produced as
maintained, and in a reasonably usable form.” Dkt. No. 89-14 at 15 (emphasis added).
Plaintiff does not dispute that the discovery was produced in the manner it was ordinarily
maintained. However, it is unclear whether the electronic documents – scanned into a
“Relativity” database, which appears to be an e-discovery software program, can be
considered produced in the manner in which they are ordinarily maintained. Regardless,
even if defendants have produced the electronic discovery in the manner in which it was
ordinarily maintained, it does not appear that the production w as submitted with “some
measure of explanation regarding the documents produced.” Pass & Seymour, 255
F.R.D. at 336.
Whether defendants have produced the electronic discovery in the manner it was
ordinarily maintained is a determination the Court cannot now make as it has neither the
disputed discovery before it nor information about how the documents were maintained.
9

Yet, to be considered in compliance with Rule 34, defendants must, at a minimum,
provide information to plaintiff about “how its documents are organized in the ordinary
course of business and what steps the party took to search and produce the documents.”
Sky Medical Supply, CV 16-6383 (JFB) (AKT), 2016 WL 4703656, at *3 (E.D.N.Y. Sept. 7,
2016); Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893 (JS/AKT),
2013 WL 1339536, at *5 (E.D.N.Y. Mar. 29, 2013) (“The Court will therefore require
Defendant Katsos to submit a detailed affidavit describing her filing system and the
specific steps she took and the methods she utilized to collect documents responsive to
Plaintiffs' requests. In the alternative, Defendant Katsos may provide Plaintiffs' counsel
with a specific response to each document demand providing the Bates numbers (or
whatever identification method was used) of specific documents which respond to each
individual document demand.”).
Thus, courts typically require that a party purporting to produce
documents in the usual course of business provide “some
modicum of information” regarding its filing system “which
would ideally include the identity of the custodian or person
from whom the documents were obtained, assurance that the
documents have been produced in the order in which they are
maintained, and a general description of the filing system from
which they were recovered.”
United States v. Bollinger Shipyards, Inc., 12-920, 2015 W L 13529562, at *4 (E.D. La.
Apr. 13, 2015) (quoting Mizner Grand Condominium Ass’n Inc. v. Travelers Property Cas.
Co. of Am., 270 F.R.D. 698, 701 (S.D. Fl. 2010)). W here the party chooses to produce in
a method other than as they are kept in the usual course of business, defendants must
produce it “in a reasonably usable form or forms.” FED. R. CIV. P. 34(b)(2)(E).
Defendants maintain that they produced the electronically-stored data in a
10

“reasonably usable form” insofar as they provided a searchable database; however, it
does not appear that there is any categorization of the documents such that plaintiffs
could reasonably review the material. Dkt. No. 89-14 at 14-15. Referring to the “ordinarily
maintained” option, this Court has noted, “if the system utilized by the producing party to
organize and maintain the documents is so deficient as to undermine the usefulness of
the production under this portion of the rule, the obligations imposed under Rule 34 may
not have been met even where this procedure is followed.” Pass & Seymour, 255 F.R.D.
at 331, n.2 (citing Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D.Mass. 1976)
(“a party ‘may not excuse itself from compliance of Rule 34 . . . by utilizing a system of
record-keeping which conceals rather than discloses relevant records, or makes it unduly
difficult to identify or locate them, thus rendering the production of the documents an
excessively burdensome and costly expedition.’”)). Here, the Court declines to order
defendants to provide a Bates-stamped page range for each interrogatory response;
however, for the discovery already provided to be considered “reasonably usable,” this
Court is of the opinion that there must be exist some method of identifying or categorizing
for the materials produced for it to be considered responsive under Rule 34. The Court
has before it very limited information about the form or content of the disclosures.
However, plaintiff indicates that he has no way of determining to which interrogatories the
disclosure responds, which defendants have produced the disclosure, as the disclosure
lacks any organization. Although the Court is of the understanding that the discovery
provided through the Relativity database is searchable, it does not appear that def endants
provided any explanation of the contents of the disclosure, including how the documents
11

were kept as well as from whom they were taken. Dkt. No. 89-1 at 7. Thus, if plaintiff has
no way of knowing to which interrogatories the discovery is responsive nor how these
documents were originally kept, the disclosure cannot be said to be in com pliance with
Rule 34. Accordingly, for the electronic discovery already produced as of the date of this
Memorandum-Decision and Order, defendants must provide (1) an affidavit indicating
“how its documents are organized in the ordinary course of business and what steps the
party took to search and produce the documents,” Sky Medical Supply, 2016 WL
4703656, at *3, (2) a form of categorization for this discovery such as an appendix or
cover sheet which provides the categories of discovery contained in the disclosure (e.g.,:
indicating that certain sections contain e-mails from a certain defendant, another section
contains financial disclosures from a certain corporation, organization of documents by
date, organization of documents by defendant, etc.) and provides a method for identifying
where in the disclosures each category is located,5 and (3) an affidavit which states to
which interrogatories the overall disclosure responds. 6 Future disclosures, if produced as
it is ordinarily maintained, must (1) indicate how the documents are ordinarily maintained
as well as the steps taken to prepare the disclosure f or discovery, and (2) contain a
system of categorization, discussed above, and (3) must make clear to plaintiff the
interrogatory numbers to which the overall disclosure responds. 7 As for the discovery

5

The identification need not be by a page number, but may be by section, date of disclosure, or
other reasonable method.
6

The Court is not requiring specific identification as to which portions are responsive to which
interrogatory; rather, a statement which lists all the interrogatory responses contained within the overall
disclosure.
7

Plaintiff will also be held to this standard for all future disclosures.

12

already disclosed, defendants must provide such information within thirty days of entry of
this Memorandum-Decision and Order.
Next, plaintiff points out that, “notwithstanding each of the named defendants
claiming their own separate identity and defenses for purposes of liability, Defendants’
counsel has not differentiated in its production which Defendant has produced which
portion of the documents.” Dkt. No. 96. Defendants have presented no argument to
explain how associating each production with the defendant or defendants responding to
the production would cause them any sizable burden. Indeed, plaintiff’s request appears
to be a minimal necessity for the disclosures to be considered in reasonably usable form.
See Pass & Seymour, 225 F.R.D. at 331, n.2. Thus, in addition to the requirements set
forth above, defendants are ordered to identify the defendant or defendants with whom
each disclosure is associated — both those already disclosed and any future disclosures.
For documents already disclosed, the identification must be made within thirty days of
entry of this Memorandum-Decision and Order.
Finally, there exist a few apparently outstanding categories of documents that
defendants indicate they have no objections to producing. First, defendants indicate that
they “do not object to producing the form Purchase Order Requests, Reimbursement
Requests, with submitted invoices and receipts, and corporate approvals, for the items
that they claim Plaintiff misappropriated.” Dkt. No. 89-1 at 8. However, defendants
contend that “as evidenced by the Dannible & McKee Report, the volume of information
relative to this request is substantial, and not easily producible in electronic form.” Dkt.
No. 89-1 at 8; Dkt. No. 89-14. Defendants contend that they have produced “the entire
13

Dannible & McKee Report, which includes several appendices, all of which detail
Plaintiff’s misappropriation.” Dkt. No. 89-14 at 13. Defendants have filed what the
undersigned understands to be the Dannible & McKee Report in support of their crossmotion. Dkt. No. 89-11. The Dannible & McKee Report “details the total fraudulent
transactions by year and by vendor for each year 2008 through 2013, as well as
Appendices A through K, which show the individual transaction amounts for each vendor.”
Id. The copy provided to the Court does not include purchase order req uests,
reimbursement requests with submitted invoices and receipts, and corporate approvals for
items defendants allege plaintiff misappropriated; rather, this report appears to be a
summary of expenses and invoices. It is unclear whether plaintiff was provided with a
version that did include such documents.8 To the extent defendants have not yet done so,
defendants are ordered to produce any of the above-requested documents that are not
otherwise contained in the Dannible & McKee Report or not otherw ise turned over to
plaintiff and must provide these documents in a reasonably usable form within thirty days
of entry of this Memorandum-Decision and Order. FED. R. CIV. P. 34(a)(1)(A).
Next, defendants state they do not object to “producing documents responsive to
Paragraphs 7, 8, 9, 17, 20, 21, 22, and 23 in the list of 24 categories of documents set
forth on pages 6 through 8 of Plaintiff’s Memorandum of Law[.]” Dkt. No. 89-1 at 8.
Defendants indicate they have already produced documents responsive to paragraphs 7,
8, 9, and 17, and are
8

Defendants’ statements indicate that there may be more to the Dannible & McKee report that
may have been produced to plaintiff, but not to the Court, as defendants provide “ the volume of
information relative to this request is substantial, and not easily producible in electronic form.” Dkt. No.
89-1 at 8. The report provided to the Court is 46 pages long.

14

continuing to search for documents responsive to the requests
identified in Paragraphs 7, 8, 9, 17, 20, 21, 22, and 23 and
intend to make a supplemental production to the extent
additional documents are located within their possession
responsive to these requests. The difficulty from Defendants’
perspective is locating electronic records without a defined
(and properly limited) universe of search terms.
Dkt. No. 89-1 at 8. Plaintiff argues that defendants “can’t require Plaintiff to specify which
documents that they requested remain extant when they themselves failed to make any
effort to inform Plaintiff what they have produced.” Dkt. No. 96 at 17.
The Court is unaware whether, since the filing of this motion, defendants have
produced any further discovery responsive to these requests or other requests. Further,
insofar as defendants suggest that they have experienced difficulty in producing electronic
discovery without agreed-upon “search terms,” the Court does not have before it any
proposed terms nor an explanation whether any efforts have been taken by the parties to
attempt to agree upon such terms. To the extent that any discovery requests remain
outstanding relating to requests 7, 8, 9, 10, 17, 21, 22, and 23, the parties are ordered,
within fourteen days of entry of this Memorandum-Decision and Order, to met and confer
to agree upon search terms for defendants to use in determining whether any documents
remain as to the aforementioned discovery demands. Once search terms are decided,
defendants are ordered to perform such search, and if such documents are determined to
exist as a result of this search, defendants must produce responsive documents within
thirty days of this Memorandum-Decision and Order either in the form originally
maintained with an explanation of how it is maintained or in a form reasonably usable.

15

B. Relevance
Plaintiff seeks production of several categories of documents that he contends is
relevant to proving his FCA retaliation claim. Plaintiff contends that proof of the
underlying fraudulent scheme – and the breadth of the fraud – is essential to several of
his claims: (1) FCA retaliation;9 (2) malicious prosecution, and (3) defamation. Dkt. No.
86-1 at 7; 13-14. Plaintiff argues that defendants will not suffer prejudice by producing the
requested documents because they
have already produced many of the documents Plaintiff seeks
to the Government as part of their investigation as a plaintiff in
this action, and moreover, some are even specifically
referenced in the settlement agreement with the Government.
It is noteworthy that some of the documents and
communications that Defendants sent to the Government
directly related to Plaintiff and Defendant’s [sic] accusations
against them.
Dkt. No. 86-1 at 26. Finally, plaintiff contends that evidence of the “extreme degree” of
fraudulent scheme is necessary because the “retaliation properly pleaded in this case is
so extraordinary that it can only be explained in the context of the equally extreme
underlying fraud.” Id. at 23.
By contrast, defendants contend that (1) documents relating to 220 Constructors,
Ralph Bennett, and Steve Benedict are not relevant as the discovery sought was relevant
only to plaintiff’s first three causes of action, all of which have settled; (2) plaintiff “need
not prove that Defendants committed a violation of the False Claims Act in order to
succeed on his retaliation claim”; (3) the requested documents are cumulative of

9

As noted, the FCA retaliation claim remain against defendants Doyner and Hayner-Hoyt, but
was dismissed as against defendants Bennet, Lemoyne, and 229. Dkt. No. 95 at 24.

16

“statements” in the settlement agreement; (4) the requests are “disproportionate to the
needs of the case and compelling Defendants to produce the requested documents
impose a significant and undue burden on Defendants.”; (5) the requested documents
relating to 229 Constructors will not show an incentive to retaliate; and (6) documents
relating to events occurring in 2012 and earlier are not relevant to plaintiff’s 2014
termination. Dkt. No. 89-14 at 17-22. Defendants essentially contend that (1) FCA
retaliation does not require a showing of the underlying fraud, and (2) even if plaintiff did
need to demonstrate the underlying fraud, plaintiff can do so through the settlement
agreement and documents already a part of the record. See generally Dkt. No. 89-14.
In reply, plaintiff contends that his requests are not cumulative of the settlement
agreement with the government as the settlement
was not an exhaustive report of Defendants’ fraud, nor a
summary of the contents of the documents evidencing the
fraud. Rather, it merely generally described some of
Defendants’ illegal activity and named some documents that
served as examples of the evidence supporting that fraud.
Thus, such document requests are axiomatically not
cumulative. Incredibly, Defendants refuse to produce even the
documents cited in the settlement agreement, let alone the
other requested documents.
Dkt. No. 96 at 4. Plaintiff also contends that documents defendants provided to the
government “are not routinely available to the Relator via request to the Government or
subpoena.” Id. at 13 (citing 28 C.F.R. § 16.21 et seq.). Finally, plaintiff reiterates his
belief that he must prove FCA retaliation, and can do so through circumstantial evidence.
Id. at 4. Further, plaintiff argues proof of the underlying fraud is relevant to defendant’s
incentive to retaliate. Id. at 9.
17

The Court will first address whether plaintiff, as movant, has met his burden of
demonstrating that the discovery he seeks is “both relevant and proportional in
accordance with Rule 26's over-arching relevancy requirement.” Neogenix Oncology, Inc.
v. Gordon, CV 14-4427 (JFB)(AKT), 2017 WL 1207558, at *10 (E.D.N.Y. Mar. 21, 2017).
Plaintiff contends that in order to prove he engaged in protected conduct under the FCA,
he must demonstrate objective and subjective elements by showing that “he had a sincere
and objectively reasonable basis for concluding that Defendants were participating in a
fraudulent scheme.” Dkt. No. 86-1 at 18. As this Court has previously held in this case,
“[g]enerally, to set forth a retaliation claim under this section, a relator must show that “‘(1)
he engaged in activity protected under the statute, (2) the employer was aware of such
activity, and (3) the employer took adverse action against him because he engaged in the
protected activity.’” United States ex rel. Rubar v. Hayner Hoyt Corp., 306 F. Supp.3d
478, 484 (N.D.N.Y. 2018) (quoting United States ex rel. Chorches for Bankr. Estate of
Fabula v. Am. Med. Response, Inc., 865 F.3d 71, 95 (2d Cir. 2017)). T o prove protected
conduct, “‘an employee’s actions must have been in furtherance of an action under the
FCA, that is, an employee must have been investigating matters that were calculated, or
reasonably could have lead [sic], to a viable FCA action.’” United States ex rel. Sasaki v.
N.Y. Univ. Med. Ctr., No. 05 Civ. 6163, 2012 WL 220219, at *12 (S.D.N.Y. Jan. 25, 2012)
(quoting Gargia v. Aspira of New York, No. 07 Civ. 5600 (PKC), 2011 WL 1458155, at *4
(S.D.N.Y. Apr. 13, 2011)). “However, a relator is required to show a ‘good faith basis’, or
‘objectively reasonable basis’, for believing that he or she was investigating matters in
support of a viable FCA case.” Id. at *12 (citing Hoyte v. Am. Nat’l Red Cross, 518 F.3d
18

61, 87 (D.C. Cir. 2008)). Further, for a plaintiff/relator “to prove that he engaged in
conduct protected under the statute, he need not prev ail on his underlying FCA claims,
but [must] simply demonstrate that he ‘had been investigating matters that were
calculated, or reasonably could have [led], to a viable FCA action.’” Id. (quoting United
States ex rel. Sasaki, 2012 WL 220219, at *12); U.S. ex rel. Sarafoglou v. Weill Med. Coll.
of Cornell Univ., 451 F. Supp.2d 613 (S.D.N.Y. 2006) (holding that an “employee’s
activities may be protected even where an FCA suit has not been filed. But the conduct
must have been in furtherance of an FCA action.”) (internal citations omitted).
Plaintiff argues that proof of the underlying fraud is relevant to his FCA retaliation
claim because, to prove he was engaged in a protected activity – which defendant
disputes – plaintiff must show that he had a good faith and objectively reasonable basis
for believing that defendants were participating in a fraudulent scheme. Dkt. No. 86-1 at
20-21. Further, plaintiff contends that documents that would show his involvement in the
whistleblowing are relevant because they may show that defendants were aware of his
activity, and, thus, had a motive, and that his termination was pretextual. Id. at 18-22.
Finally, in a closely related argument, plaintiff contends that evidence of the magnitude of
the fraudulent scheme is necessary to explain the “extreme degree” of retaliation. Id. at
23-24.
First, the Court finds that plaintiff has met his burden by demonstrating that
evidence of the fraudulent scheme is relevant to his FCA retaliation claim as discovery
may reveal that defendants were aware of plaintiff’s whistleblowing activities such that his
termination was pretextual. Second, as an FCA retaliation claim requires plaintiff to prove
19

that he was engaging in a protected activity, Rubar, 306 F. Supp.3d at 484, evidence
relating to the potentially fraudulent transactions plaintiff encountered or refused to
participate in may serve to demonstrate that good-faith basis. Finally, plaintiff has further
demonstrated that the breadth or significance of the alleged fraud may prove relevant to
attempting to showing the significant retaliatory measures defendants took. Defendants
dispute that plaintiff has engaged in a protected activity under the statue, Dkt. No. 89-14
at 21; thus, they dispute that plaintiff had a “good faith” or “objectively reasonable” basis
for believing that he was engaging in conduct in support of a viable FCA claim. To prove
the disputed protected conduct prong, plaintiff must be permitted to discover evidence
relating to the underlying fraud to attempt to demonstrate this good faith basis. United
States ex rel. Sasaki, 2012 WL 220219, at *12. As this Court has stated, discov ery of this
material does not mean that this material will necessarily be admitted. FED. R. CIV. P.
26(b)(1). As plaintiff has “met the relatively modest burden of demonstrating potential
relevance of the requested information.” T.H. by Shepherd, 2018 WL 3738945, at *5, “the
burden now shifts to defendants to establish that the requests lack relevance, ‘despite the
broad and liberal construction afforded to the federal discovery rules.’” Id. (quoting John
Wiley & Sons, Inc. v. Book Dog Books, LLC, 298 F.R.D. 184 (S.D.N.Y. 2014)).
Defendants argue that because proof of a false claims violation (§3729) is not an
element of a FCA retaliation (§3730(h)) claim, plaintiff does not need to show that
defendants violated the FCA to succeed on his retaliation claim. Dkt. No. 89-14 at 17
(citing Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson,
545 U.S. 409, 416 n.1 (2005)). As evidenced by parties’ briefs, there is little case law
20

addressing, in the discovery context, the specific question of the relevance of the
fraudulent scheme underlying a FCA retaliation claim to the issue of motive or pretext.
Defendants bring to the Court’s attention Dilback v. General Elec. Co., No. 4:00-CV-222,
2008 WL 4372901 (W.D. KY Sept. 22, 2008). There, the plaintiff sought discovery
regarding the underlying qui tam case, arguing (1) information related to the underlying
purported fraud against the United States was relevant “to prove that he was investigating
and filed a qui tam claim related to a ‘viable’ FCA action,” and (2) proof of the underlying
fraud is relevant “because the Defendant has asserted a non-retaliatory reason as to why
the Plaintiff was terminated, he should be permitted to use evidence of fraud to prove that
the stated reason is merely pretext. If the accusations are true . . . then the Def endant
would have more of a motive to retaliate against the Plaintiff.” Id. at *4. The Court denied
the plaintiff’s motion seeking discovery relating to the underlying fraud as it related to the
viability of the FCA claim as the standard did not require the plaintiff “to have investigated
an actual fraud against the United States in order to have engaged in activity that could
reasonably have led to a ‘viable FCA action[,]” instead, the plaintiff only needed to show –
under Sixth Circuit precedent – that her actions were “reasonably connected to the FCA”
and her actions involved “exposing fraud,” even if the accused did not actually violate the
FCA. Id. Thus, the Court held that “evidence related to the alleged fraud is not
discoverable for those purposes.” Id.
However, the Dilback Court permitted discovery relating to the alleged underlying
fraud in order to attempt to prove the defendant’s motive to retaliate. The Court
determined that information about the underlying fraud may be relevant to motive in
21

plaintiff’s retaliation claim, specifically as to pretext, as the plaintiff would be required to
show that a retaliatory reason motivated the employer or that the defendants’ reason for
the adverse employment decision was pretext. 2008 WL 4372901, at *4-5. Thus, the
Court held that if the plaintiff could demonstrate that the documents “reveal the existence
of false claims on the part of the Defendant, then [sic] such evidence may be probative of
the Defendant’s motivation.” The Court agrees with the Dilback court’s rationale. Plaintiff
contends that to show he was engaged in protected conduct, he “must show that he had a
sincere and objectively reasonable basis for concluding that Defendants were participating
in a fraudulent scheme.” Dkt. No. 86-1 at 18. Thus, plaintiff argues that he must be able
to present evidence that the underlying fraudulent scheme occurred. Id. The Court is not
concluding that the underlying fraudulent scheme is an element of a FCA retaliation claim;
however, the Court does agree with plaintiff that, to show he was engaged in protected
activity, he must be able to offer evidence “that a reasonable person would believe that
participating in Defendants’ scheme would violate the FCA.” Dkt. No. 86-1. Although
defendants urge the Court to find Dilback distinguishable, the plaintiff in Dilback was
apparently seeking to demonstrate the validity of the underlying qui tam claim. Plaintiff
does not argue that he is attempting to prove the existence of the fraud to demonstrate its
validity10; rather, that he had a good faith, objectively reasonable belief that defendants
were engaging in fraud on the government – something defendants dispute. Here,
defendants have failed to meet their burden of demonstrating that plaintiff’s requests are

10

Were plaintiff attempting to demonstrate the validity of the FCA claim, the undersigned would
be likely to find that such was not relevant to the FCA retaliation claim. However, the undersigned is of the
opinion that plaintiff is not seeking discovery for that purpose.

22

irrelevant to the FCA retaliation claim.
Defendants argue that Dilback’s holding – insofar as the Court held that evidence
of the underlying fraud was relevant to plaintiff’s retaliation claim in order to show motive –
is also distinguishable because, unlike in Dilback, plaintiff has access to evidence that
could show what he seeks. Defendants contend that plaintiff has not demonstrated why
his discovery requests for evidence relating to the underlying qui tam investigation are not
“entirely duplicative of the statements contained in the Settlement Agreement.” Dkt. No.
89-14 at 17-23. However, this does not appear to be a situation where the settlement
agreement alone would suffice to assist plaintiff in demonstrating motive and pretext.
First, plaintiff contends that he does not have access to the documents cited in the
settlement agreement. Dkt. No. 96 at 10. Second, plaintif f argues that the settlement
agreement is a summary of the fraud, and does not set forth specifics.
The Court has reviewed the settlement agreement and agrees with plaintiff that it
merely sets forth summary of the fraudulent scheme. As plaintiff must show he had a
good faith basis in believing defendant was engaged in fraud on the government, the
settlement document alone does not necessarily demonstrate that plaintiff had a good
faith basis for believing the fraud to be occurring nor does it explain plaintiff’s involvement.
Although the defendants have settled with the United States over alleged violations of the
FCA, because the settlement agreement does not demonstrate plaintiff’s direct role nor
detail the full scale of the alleged fraudulent scheme, it does not necessarily follow that
plaintiff can prove protected conduct merely by showing the settlement agreement.
Thus, the undersigned declines conclude that plaintiff should be entitled to use only
23

the settlement agreement to demonstrate the underlying fraud because plaintiff has met
his burden of demonstrating that the underlying fraudulent scheme is relevant to his FCA
retaliation claim and the settlement agreement does not set forth plaintiff’s specific
involvement in whistleblowing which he may need to present to demonstrate motive and
pretext. Accordingly, plaintiff has proven relevant the documents cited within the
settlement agreement along with material likely to demonstrate defendants’ knowledge of
plaintiff’s whistleblowing activities and the extent of the fraudulent activity in order to
establish pretext and motive. Thus, the Court must conclude whether plaintiff’s claims are
proportional to his need, or whether defendants have demonstrated good cause for a
protective order limiting or narrowing these demands. FED. R. CIV. P. 26(c)(1).

B. Proportional
The Court has determined that plaintiff has met his burden of demonstrating
relevance of discovery relating to the underlying fraud; however, it still must be determined
whether his discovery requests are proportional to the needs of the case. See Neogenix,
2017 WL 1207558, at *7 (quoting Rule 26 Advisory Committee Notes to 2015
Amendments). In addition to setting forth arguments over relevance, in support of their
motion for a protective order, defendants argue that plaintiff’s requests are either
overbroad or burdensome. Dkt. No. 89-14.
“Where . . the [discovery is] relevant, the burden is upon the party seeking nondisclosure or a protective order to show good cause.” Ruggles v. WellPoint, Inc., 1:08CV-201 (LEK/RFT), 2010 WL 11570681, at *4 (N.D.N.Y. Dec. 28, 2010) (quoting
24

Rodriguez v. Selsky, 1:08-CV-201 (LEK/RFT), 2008 WL 2778879, at *2 (N.D.N.Y. Jul. 14,
2008)); Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2nd Cir. 1992) (citations om itted)
(same). This rule is often invoked to avoid potentially expensive and wasteful discovery
during the pendency of a determination which could potentially reshape pending claims.”
Dabney v. Maddock, No. 10-CV-0519 (GTS/DEP), 2011 WL 7479164, at *11 (N.D.N.Y.
Nov. 29, 2011) (collecting cases). Beyond the relevance arguments, the crux of
defendants’ argument is that plaintiff’s demands are overbroad and burdensome such that
it will be both time-consuming and expensive for defendants to respond. Dkt. No. 89-14 at
20 (contending that many of plaintiff’s requests are “disproportionate to the needs of the
case[.]”). Defendants have also argued that they have already produced several
documents responsive to plaintiff’s demands.11 Plaintiff contends that defendants have
failed to meet their burden of demonstrating good cause because they have not
“specif[ied] the harm that they would suffer in responding to Plaintiff’s document requests
nor do they identify which documents they seek to protect or provide any documentspecific justifications.” Dkt. No. 97 at 1; Dkt. No. 96 at 10.
Although it is well-settled that “liberal treatment” of discovery rules “does not license
opposing counsel to discover anything and everything[,]" In re Six Grand Jury Witnesses,
979 F.2d at 943, here, defendants have failed to meet their burden as they have not
shown how “each interrogatory is not relevant or how each question is overly broad,
burdensome or oppressive.” North Shore-Long Island Jewish Health Systems, Inc., 325

11

Arguments relating to material defendants allege to have already disclosed will be addressed
below. Infra at 27-32.

25

F.R.D. at 48. As plaintiff points out, defendants’ counsel indicates that responding to
plaintiff’s many categories of discovery would “create an unreasonable burden on
Defendants.” Dkt. No. 89-1 at 9. However, beyond identifying one specific request that
defendants claim to be unduly burdensome,12 defendants do not explain how the other
requests are burdensome beyond referring to the sheer number of demands. See, e.g., In
re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp.2d 220, 222 (S.D.N.Y . 2006)(holding
that a party establishes “good cause” by showing that a “clearly defined, specific and
serious injury” will occur in the absence of a protective order). As also highlighted by
plaintiff, defendants indicate to the Court that they have access to a software program to
search digital files or produce electronic discovery. Dkt. No. 96 at 11. Thus, as least as it
relates to electronic requests, it would not appear that needing to search a significant
number of files would be unusually burdensome if a keyword search or related feature is
available. The Court acknowledges that plaintiff has made several demands of
defendants; however, in the absence of demonstrating precisely how each interrogatory is
“overly broad, burdensome or oppressive,” they have not met their burden of showing
entitlement to a protective order. Cf. Trafalgar Power, Inc. v. Algonquin Power Corp., Inc.,
5:99-CV-1238 (DNH/DEP), 2007 WL 9710051, at *4 (N.D.N.Y. Sept. 13, 2007). This
Court has “broad discretion” to “decide when a protective order is appropriate and what
degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
Insofar as defendants suggest that the discovery requests “effectively require[] them to ‘re-

12

“By way of example, there are more than 20,000 pages of documents containing the
“@220constructors.com” domain name that Defendants would need to review just to respond to certain of
Plaintiff’s requests.” Dkt. No. 89-14 at 10.

26

litigate the false claims dispute,” Dkt. No. 89-14, the Court is fully capable of making sure
that such does not occur and will require strict compliance with the rules of civil procedure
and evidence should this case reach trial. As this Court has repeatedly reiterated, even
where discovery is significant in its breadth, it does not follow that every document will be
considered admissible at trial. FED. R. CIV. P. 26(b)(1).
Accordingly, insofar as defendants seek a protective order based on general
arguments that plaintiff’s discovery requests are overbroad or unduly burdensome,
defendants’ request is denied. Insofar as plaintiff “seeks a conditional order of preclusion”
barring defendants from making certain arguments or raising certain defenses, Dkt. No.
96 at 14, that request is denied, at this time, to permit defendants an opportunity to
comply with discovery following the issuance of this Memorandum-Decision and Order.

C. Miscellaneous Requests
The parties discuss several specific requests that plaintiff alleges defendants have
not responded to, to which defendants argue (1) they have responded, (2) they are in the
process of responding, (3) that no such documents exist, and (4) they are unable to
respond due to a lack of workable parameters. Dkt. No. 89-14 at 12-15, 26-28. The Court
addresses these various arguments or objections below.

1. Discovery relating to 229 Constructors
Insofar as plaintiff requests documents relating to 229 Constructors and its owners
as it relates to his retaliation claims, defendants contend that they “are not in possession
27

of a single document showing that any of the defendants or their representatives had any
knowledge about Mr. Rubar’s purported engagement in protected activity (which
Defendants strongly doubt even occurred).” Dkt. No. 89-14 at 21. Further, defendants
reiterate their argument that any information plaintiff seeks to obtain to prove motive is
“entirely duplicative of the statements contained in the Settlement Agreement[.]” Dkt. No.
89-14 at 21. Finally, defendant argues that there is a lack of temporal proximity between
“when Plaintiff purportedly engaged in protected activity and when plaintiff was terminated
(roughly 19 months later[.])”
Initially, the Court rejects defendants’ argument relating to sufficiency of the
settlement agreement for the reasons set forth above. Plaintiff appears to argue that
defendants may be disingenuous about performing diligent searches for the requested
materials as they made similar claims – that they “‘do not believe they are in possession
of’” – when responding to other categories of discovery demands, but plaintiff has since
learned such documents do exist from nonparties. Dkt. No. 96 at 7-8. Thus, plaintiff
argues that it is possible that defendants also have relevant documents as to this request.
Id. at 8. The Court finds that a reasonable solution to plaintiff’s concern is for defendants
to perform a thorough search for such documents and, if any are discovered, provide any
documents to plaintiff, and if none are discovered, provide to plaintiff an affidavit indicating
that they have diligently searched and have found no responsive documents or
communications. Accordingly, defendants are ordered, within thirty days of entry of this
Memorandum-Decision and Order, to complete a thorough search to ascertain whether
they are in possession of any documents suggesting any defendants were aware of
28

plaintiff’s attempt to uncover or report fraud on the government, and provide any relevant
results to plaintiff. If defendants complete such search and determine no such documents
exist, within thirty days of entry of this Memorandum-Decision and Order, defendants must
submit to plaintiff an affidavit indicating that they have diligently searched and have found
no such documents and are not aware of the existence of any such documents.
Defendants are advised that if they fail to sufficiency and diligently complete such search
and provide any relevant discovery from that search if found, should it be demonstrated
that such affidavit is untrue, the Court will consider any application for sanctions or other
consequences.

2. Post-termination evidence
Next, insofar as defendant contends that post-termination documents are not
relevant because the alleged protected activity was said to have occurred 19 months
before plaintiff’s termination, the Court disagrees that such a gap renders these
documents not relevant for the purposes of discovery. Plaintiff suggests that there was
ongoing retaliation which culminated in termination. That plaintiff’s termination was 19
months after the alleged protected activity does not automatically render the posttermination documents irrelevant to proving pretext. Moreover, discovery of the
documents does not mean that such documents will be admissible, and the Court
declines, at this time, to make an admissibility decision. To the extent defendants believe
that activities that occurred 19 months before plaintiff’s termination are irrelevant to
plaintiff’s retaliation claim, such an argument would more properly be made before the
29

District Judge in a properly-filed dispositive motion or a motion in limine. As this Court
determines that such documents, should they exist, may be relevant to plaintiff’s
retaliation claim, within thirty days of entry of this Memorandum-Decision and Order,
defendants must either produce such documents or provide an affidavit confirming that
defendants performed a thorough search and found no documents or communications.
Defendants contend that they have produced “several pages of documents created
after Plaintiff’s termination.” Dkt. No. 89-14 at 25. They argue that they have “never taken
the blanket position that all documents created after Plaintiff’s termination are irrelevant to
the claims or defenses in this case,” but contend that because “Plaintif f does not identify
which categories of post-termination documents he believes Defendants have withheld on
the basis of a relevancy objection, Defendants are unable to address this argument
further.” Id. In response, plaintiff states that defendants’ form of production is the reason
why they are having difficulty identifying the demands to which they have responded, and
that “[d]efendants can’t require Plaintiff to specify which documents that they requested
remain extant when they themselves failed to make any effort to inform Plaintiff what they
have produced.” Dkt, No. 96 at 17.
If the parties cannot identify the documents they seek withheld or protected, the
Court certainly is unable to order these documents to be produced or protected. The
Court is further unaware of the specific documents defendants have overturned that they
believe are responsive to this request. However, as this Court has ordered parties to
meet and confer to agree to search terms for electronic discovery and has further ordered
defendants to indicate the interrogatories to which they have already responded, supra at
30

12-15, compliance with that portion of this Court’s Memorandum-Decision and Order may
solve defendants’ problem by assisting parties in identifying which documents have been
disclosed or withheld. However, to the extent that, compliance with this Order does not
elucidate for parties the specific document demands that remain pending, parties are
ordered to meet and confer, within fourteen days of entry of this Memorandum-Decision
and Order, to discern any discovery that this Court has deemed relevant that may remain
undisclosed.13 If it is determined that any outstanding discovery, which this Court has
deemed relevant, remains, defendants are to produce such discovery to plaintiff within
thirty (30) days following entry of this Memorandum-Decision and Order.

3. Requests Related to Defamation/Retaliation
Plaintiff contends that defendants have failed to produce requests relevant to his
defamation and retaliation claims. Dkt. No. 86-1 at 14. Plaintiff first contends that he has
requested copies of disparaging statements made about plaintiff in the construction
industry. Dkt. No. 86-1 at 14 (citing HH Doc. Request 4, 5 [Dkt. No. 86-3 at 3]). Further,
plaintiff contends that defendants “have objected to providing any material related to their
communications with the Syracuse Police Department, specifically with Detective Falvo,
which is “essential to Plaintiff’s malicious prosecution claim.” Id. (citing HH Doc. Request
3 [Dkt. No. 86-3 at 3]). Further, plaintiff argues that defendants’ “representations to the
police regarding Rubar and/or the alleged theft are essential to establishing malice and/or

13

Insofar as plaintiff requests a Bates range, the Court, for the reasons set forth above, decline
to order defendants to provide a Bates range, but do require past and future requests be provided with an
indication of the interrogatories/demands to which they are responsive.

31

are evidence of retaliatory intent.” Id.
Defendants indicate that they “do not believe they possess any documents showing
‘disparaging statements’ made about Mr. Rubar within the construction industry.” Dkt. No.
96 at 6. Defendants do not set forth any relevant argument as it relates to plaintiff’s
request for communication between Gary Thurston and the City of Syracuse Police
Department. However, in defendants’ initial objections to this request, they objected on
the grounds that
it is over-broad, vague, and ambiguous, and, as a result,
imposes undue burden and expense in violation of the Federal
Rules of Civil Procedure. Haynor Hoyt objects to this Request
to the extent that it seeks documents subject to the attorneyclient privilege or which constitute attorney work product,
pertain to materials prepared in anticipation of or as a result of
litigation, or are otherwise immune from discovery by the
common interest privilege or otherwise applicable privilege or
immunity. Subject to and without waiving the General
Objections above, Haynor Hoyt will produce relevant, nonprivileged documents responsive to this Request, to the extent
such documents exist and are within Hayner Hoyt’s
possession, custody, and control upon the parties’ negotiation
and execution of a Protective Order.
Dkt. No. 86-4 at 6.
Plaintiff, in his reply, produces evidence that may suggest that communications that
are “disparaging” to plaintiff in the construction industry do exist. Plaintiff provides a
purported copy of an e-mail “sent from [e-mail], authored by Mr.
Thurston, and containing his company title and contact information” and “obtain[ed] . . .
through a nonparty to this lawsuit” which “suggests that the representation that
Defendants ‘do not believe’ they possess such documents is unworthy of belief.” Dkt. No.
96. The Court declines, at this time, to make an evidentiary determination or potentially
32

review the validity of this e-mail. However, as plaintiff has made the threshold
demonstration that any such documents, if in existence, may be relevant to his retaliation
or malicious prosecution claims, defendant Hayner Hoyt must undergo a diligent search of
their records, including any electronic communication, to determine whether there exist
responsive documents/communications. If such documents exist, defendants must
provide such documents to plaintiff within thirty days of entry of this MemorandumDecision and Order.14 If no such documents exist, Hayner Hoyt must, within thirty days of
this Memorandum-Decision and Order, provide to plaintiff an affidavit indicating that
defendant underwent a diligent search and has found no such responsive documents.
As for plaintiff’s request relating to Hayner Hoyt’s communications with the City of
Syracuse Police Department, as plaintiff has met his minimum threshold showing that
such documents, to the extent they exist, are likely relevant to his defamation and/or
malicious prosecution claim, and defendant has not presented an argument
demonstrating that these documents are overbroad, vague, ambiguous, or over
burdensome; protected by privilege; or not in defendants’ control, defendants are ordered
to produce any such documents, if they exist. Defendants must either produce such
documents within thirty days or provide an affidavit affirming that defendants underwent a
diligent search and found no responsive documents.

14

The undersigned notes that the objections indicate that defendants would turn over responsive
documents subject to a protective order. The undersigned acknowledges that defendants include, as an
exhibit to their cross-motion, what appears to be a “Draft Protective Order.” Dkt. No. 89-5. It is not clear
to the Court whether parties have executed this protective order or if this protective order was intended for
the request relating to communications with the City of Syracuse police Department.

33

D. Potentially Privileged Information
Plaintiff requests documents from law firms that have represented defendants.
Plaintiff requests “[i]temized billing statements and time records for any Lynn Law Firm
representation concerning John Rubar” as “[r]esponsive documents will show the timing of
when Defendants began their campaign of retaliation against Plaintiff and may hep negate
Defendants’ counter-claims.” Dkt. No. 96-2 at 2. Plaintiff also requests “[a]ll
communications between DiMuroGinsberg P.C., Greenberg Traurig, LLP, and Squire
Patton Boggs LLP that mention or reference John Rubar or the qui tam investigation.” Id.
at 1. Plaintiff contends that such documents ‘will contain information relevant to the
underlying fraud because the communications are in response to the Government
investigation” and
[w]ill also contain information relevant to the ongoing retaliation
and retaliatory animus to the extent those communications
concerned Plaintiff and/or information about Plaintiff that was
later conveyed to the Government. These documents may
reveal Defendants’ knowledge that John Rubar was the Relator
and they may contain statements by Defendants challenging
his credibility.
Dkt. No. 96-2 at 1-2.
Addressing first the request relating to Lynn Law Firm, defendants contend that
they “have already responded to this request as has the Lynn Law Firm” Dkt., No. 89-14
at 26. Defendants further contend that “descriptions of the services rendered are
privileged,” and, moreover, that Lynn Law Firm “is already on record indicating that the
firm was engaged by Hayner Hoyt prior to the firm’s representation concerning John
Rubar, which was commenced after Mr. Rubar was terminated.” Id. at 26-27 (citing Dkt.
34

No. 89-12). The Court is unaware of the degree to which defendants have responded to
this request, if at all. The Court does not have before it a privilege log, and, thus, is
unable to ascertain whether defendants have provided a detailed statement of these
documents. It is well-settled that not every communication between an attorney and
client is protected by the attorney-client privilege. Moreover, although “[t]ime records
generally have been held to be protected from disclosure by the attorney-client privilege
as they may ‘reveal litigation strategy or the specific nature of the service provided,’ . . .
‘attorney time records and billing statements are not privileged when they do not contain
detailed accounts of the legal services rendered.’” Mohr v. Security Credit Services, LLC,
141 F. Supp.3d 179, 185 (quoting DiBella v. Hopkins, 403 F.3d 102, 120 (2d Cir. 2005)
(internal citation omitted)); Ehrich v. Binghamton City Sch. Dist., 210 F.R.D. 17, 23
(N.D.N.Y. 2002) (“Although the federal rule is less definitive [than the New York State
standard], the court concludes that attorney billing statements are subject to the attorneyclient privilege to the extent that they reveal more than client identity and fee
information.”). Thus, defendants should be able to provide, without revealing attorneyclient privileged information, billing statements and time records relating to Lynn Law
Firm’s representation insofar as it involved plaintiff, redacted, where needed, to the extent
they reveal anything beyond client identity and fee information. However, plaintiff has not,
at this time, demonstrated that itemized billing statements and time records from Lynn
Law Firm are proportional to the apparent need to know when Lynn Law Firm began to
represent defendants relating to John Rubar. Instead, plaintiff has shown merely that
knowledge of when Lynn Law Firm began its representation of defendants regarding
35

matters related to plaintiff is relevant to his claims in this case. Although defendants
contend that Lynn Law Firm “is already on the record indicating that the firm was engaged
by Hayner Hoyt priot to the firm’s representation concerning John Rubar, which was
commenced after Mr. Rubar was terminated,” it is entirely unclear to which “record”
statement defendants are referring. Dkt. No. 89-14 at 26. The letter included with the
cross-motion does not answer the question of when the representation as it relates to
plaintiff began. Dkt. No. 89-12. Accordingly, defendants must provide an affidavit
indicating when any Lynn Law Firm representation relating to Rubar began and ended
within thirty days of entry of this Memorandum-Decision and Order.
Next, plaintiff requests communications between Lynn Law Firm and Louis Falvo,
Syracuse Police Department, Onondaga County District Attorney’s Office, Travelers or
Charter Oak Insurance Company, Syracuse Post Standard or “any other media outlet,”
Dannible & McKee, “GPS vendor,” or “computer forensics vendor.” Dkt. No. 96-2 at 8
(Lynn Law Firm Request 8). Defendants do not explicitly respond to this request in their
cross motion. However, to the extent defendants intend to imply that these requests are
privileged, the Court notes that communications between nonparties and Lynn Law Firm
may not be protected by the attorney-client privilege. See generally U.S. v. Ackert, 169
F.3d 136 (2d Cir. 1999) (“[A] communication between an attorney and a third party does
not become shielded by the attorney-client privilege solely because the communication
proves important to the attorney’s ability to represent the client.”) (citing Hickman v. Taylor,
329 U.S. 495 (1947)); Colton v. United States, 306 F.2d 633, 640 (2d Cir. 1962) (“W e
have already noted that papers received from third parties are unprivileged and no theory
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has been presented on which communications from an attorney to a third party are
privileged.”)); but see In re Grand Jury Proceeding, 79 F.App’x 476, 477 (2d Cir. 2003)
(summary order) (“Generally, the privilege applies only to communications between a
client and its lawyer, not between the client or its lawyer and third parties. Under limited
circumstances, however, the attorney-client privilege may extend to communications with
a third party, such as an accountant or a private investigator hired to assist in the rendition
of legal services. Like any communications protected by the attorney-client privilege,
however, communication with such third-party agents is only protected if it is ‘made in
confidence for the purpose of obtaining legal advice from the lawyer.’”) (internal citations
omitted). Thus, the Court cannot make a determination, when the communications are
not before it, whether they are privileged. Thus, defendants are ordered to either produce
any such documents, or, if they believe them to be protected by the attorney-client
privilege or other privilege, provide to plaintiff a detailed privilege log indicating their
rationale for asserting the privilege. Such disclosures or privilege log must be provided to
plaintiff within thirty days of entry of this Memorandum-Decision and Order.
Responding in a footnote to the request relating to DiMuroGinsberg, P.C.,
Greenberg Traurig, LLP or Squire Patton Boggs, LLP, defendants contend that plaintiff’s
request “not only seeks information that is irrelevant, cumulative, and burdensome to
collect, as discussed above, but it also seeks information that is entirely privileged.” Dkt.
No. 89-15 at 26 n.6. To the extent plaintiff is seeking communications from these law
firms that involves their representation of defendants, defendants may be correct that
communications involving their representation of defendants relating to plaintiff or the qui
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tam investigation would be protected by the attorney-client and/or work-product privileges.
Unlike with Lynn Law Firm, plaintiff does not appear to seek time records that may not be
protected, but broadly seeks to recover communications. Although the Court does not
have specific communications before it to be able to assess their privilege, to the extent
that the communications involve the giving or receiving of legal advice, it would appear
those communications are privileged. Thus, although defendants’ summary footnote does
not demonstrate that producing any such documents would be “irrelevant, cumulative, and
burdensome to collect,” because such communications may be privileged out of an
abundance of caution, the Court denies plaintiff’s request, at this time, insofar as it relates
to communications involving DiMuroGinsberg, P.C., Greenberg Traurig, LLP or Squire
Patton Boggs, LLP as they may be privileged.

E. Depositions
Plaintiff moves for an order compelling defendants to “move forward with
scheduling depositions without the improper pre-conditions that Defendants are
attempting to require.” Dkt. No. 86-1 at 27. Defendants concede “that Defendants’
counsel sought to understand the nature of the deposition in advance,” but contend their
position is “so that Defendants could decide whether or not to seek a protective order,
which seemed to be more efficient than waiting until the date of the deposition and
questions were being asked to potentially request an adjournment.” Dkt. No. 89-14 at 29.
Defendants indicated that their “concern is with depositions occurring that are only
relevant to claims that are the subject of their motion to dismiss.” Id. at 29. As the motion
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to dismiss has been decided, dkt. no. 98, and it does not appear that def endants have
moved for a protective order specifically related to any defendants’ deposition, it would
appear that depositions now should be able to proceed. Accordingly, this portion of
plaintiff’s motion is granted. To the extent there are depositions still at issue, defendants
are ordered to participate in depositions relevant to all claims and defendants not
otherwise dismissed by this Court’s January 25, 2018 Memorandum-Decision and Order.
Defendants are reminded that unless defendants properly seek and obtain a stay of
discovery while a dispositive motion is pending, discovery – including depositions – are to
proceed.

IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff’s Motion to Compel Discovery, Dkt. No. 86, is GRANTED
IN PART, insofar as defendants are ordered to produce the outstandin g discovery within
the time frames set forth below, and it is further
ORDERED, that plaintiff’s Motion to Compel Discovery, Dkt. No. 86, is DENIED IN
PART, insofar as the Court
(1) declines, at this time, to order defendants to produce discovery relating to
communications between defendants and DiMuroGinsberg, P.C., Greenberg Traurig, LLP,
or Square Patton Boggs, LLP, and
(2) declines, at this time, to issue a “conditional order of preclusion” barring
defendants from raising certain defenses;
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ORDERED, that defendant’s Cross-Motion for a Protective Order, Dkt. No. 89, is
DENIED, and it is further
ORDERED, that pursuant to the terms of this Memorandum-Decision and Order,
parties must comply with the following deadlines:
(1) Within fourteen (14) days of entry of this Memorandum-Decision and Order parties
must:
(a) meet and confer to agree to a “defined universe of search terms” relating to
outstanding discovery identified in Dkt. No. 86-1 at 11-12, ¶¶ 7, 8, 9, 10, 17, 22,
and 23;
(b) if parties cannot determine whether requested discovery (not otherwise
identified in the paragraphs above) has been overturned or remains outstanding,
parties are to meet and confer to identify any discovery that must still be produced;
(2) Within thirty (30) days of entry of this Memorandum-Decision and Order, defendants
must:
(a) provide plaintiff an affidavit: indicating how the electronic discovery already
produced is ordinarily maintained, providing a categorization/identification system
for the discovery, identifying the interrogatories to which the disclosure responded,
and associating with each disclosure the defendants who are providing such
response;
(b) produce any outstanding discovery relating to plaintiff’s requests at Dkt. No. 861 11-12, at ¶¶ 7, 8, 9, 10, 17, 22, or 23;
(c) if not already provided, produce copies of Purchase Order Requests,
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Reimbursement Requests, with submitted invoices and receipts, and corporate
approvals, for the items defendants claim plaintiff misappropriated;
(d) produce any discovery which may show defendants’ awareness of plaintiff’s
protected activity or provide an affidavit indicating that defendants have performed
a diligent search and have uncovered no documents indicating defendants’
awareness of plaintiff’s efforts to uncover fraud;
(e) produce documents responsive to discovery demands relating to plaintiff’s posttermination requests or provide an affidavit indicating that defendants underwent a
diligent search and no such documents exist;
(f) produce documents relating to any disparaging statements defendants made
about plaintiff in the construction industry or an affidavit indicating that defendants
underwent a diligent search and have not found any documents to exist;
(g) produce an affidavit indicating when representation by Lynn Law Firm began
and ended regarding matters related to plaintiff;
(h) produce documents responsive to plaintiff’s request for communications
between Lynn Law Firm and Louis Falvo, Syracuse Police Department, Onondaga
County District Attorney’s Office, Travelers or Charter Oak Insurance Company,
Syracuse Post Standard or “any other media outlet,” Dannible & McKee, “GPS
vendor,” or “computer forensics vendor” or provide a detailed privilege log
indicating why any such documents are privileged.
IT IS SO ORDERED.
Dated: September 18, 2018
Albany, New York
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