Yoder, et al v. Town of Morristown, et al

Filing 65

Letter Motion from Daniel P. Goldberger for Menno L. Glick, John L. Hershberger, Menno S. Hershberger, Urie Hershberger, Andy A. Miller, Harvey Miller, Mose Miller, Dannie L. Swartzentruber, Mosie Swartzentruber, Peter D. Swartzentruber, Levi Yoder, Jonas Zook, Sam Zook requesting The Court's intervention with regard to Defendants' continued failure to comply with several Discovery Orders submitted to Judge George H. Lowe with Exhibits 1-10. (Goldberger, Daniel)

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

Page 1 of 2

Goldberger, Daniel P.
From: Sent: To: [e-mail] Monday, March 01, 2010 5:05 PM [e-mail]

Subject: Activity in Case 7:09-cv-00007-NPM-GHL Yoder, et al v. Town of Morristown, et al Status Conference

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court Northern District of New York - Main Office (Syracuse) [LIVE - Version 4.0.3] Notice of Electronic Filing The following transaction was entered on 3/1/2010 at 5:04 PM EST and filed on 2/26/2010 Case Name: Yoder, et al v. Town of Morristown, et al Case Number: 7:09-cv-00007-NPM-GHL Filer: Document Number: No document attached Docket Text: TEXT Minute Entry for proceedings held before Magistrate Judge George H. Lowe: Status Conference held on 2/26/2010. Appearances: Daniel Goldberger, Esq., Jason Gerstein, Esq. and Lori Windham, Esq. for Plaintiffs; Jacinda Conboy, Esq. for Defendants. Judge Lowe reviews Ms. Conboy's 2/26/10 letter with counsel. Issue no. 1 is resolved - Plaintiffs will come up with a time line and Defendants will produce the requested documents. Issue no. 2 is resolved. Issue no. 3 - Judge Lowe does not find that Defendants have waived their objections. Ms. Conboy will supplement Interrogatories 2, 5, 6 and if possible 7. The objections to Interrogatory 16 are sustained. Issue no. 4 is resolved. Issue No. 5 Judge Lowe denies the request for copies of retainers. Defendants may submit letter briefs on this issue and Plaintiffs will be given a chance to respond. Issue no. 6 - counsel will alternate the depositions. Ms. Conboy will provide a privilege log regarding communications by Andy Silver for this case. (FTR Recorded) (rjb, ) 7:09-cv-00007-NPM-GHL Notice has been electronically mailed to: Christopher R. Lemire Daniel Goldberger [e-mail]

[e-mail]

8/13/2010

Page 2 of 2

Eric C. Rassbach

[e-mail], [e-mail]

Gregg T. Johnson [e-mail], [e-mail], [e-mail], [e-mail], [e-mail] Jacinda Hall Conboy [e-mail], [e-mail], [e-mail] Jason Gerstein [e-mail] [e-mail], [e-mail] [e-mail], [e-mail] [e-mail] [e-mail], [e-mail]

Lori H. Windham Michael T. Mervis Rachelle L. Laroche

Russell L. Hirschhorn

7:09-cv-00007-NPM-GHL Notice has been delivered by other means to:

8/13/2010

EXHIBIT 4

BOARD OF ADVISORS
Hon. William P. Barr Former Attorney General of the United States Prof. Stephen L. Carter Yale Law School His Eminence Francis Cardinal George, O.M.I., Archbishop of Chicago Hon. Orrin G. Hatch United States Senator Prof. Douglas Laycock University of Michigan Law School Rev. Richard John Neuhaus Eunice Kennedy Shriver

April 22, 2010 By Electronic Mail and First Class Mail Jacinda H. Conboy, Esq. Lemire Johnson, LLC 2534 Route 9 P.O. Box 2485 Malta, NY 12020 Dear Ms. Conboy: We write to follow-up on our discussion during the telephone hearing held on February 26, 2010 and in Mr. Goldberger's subsequent March 5 email to you. As you recognized by sending us an additional document on April 20, document discovery is not stayed, and we want to ensure that the outstanding discovery issues are resolved so that depositions may proceed in a timely manner after the stay of depositions is lifted. Our records reflect that the following five issues remain outstanding: 1. We have not received the privilege log promised to Plaintiffs during the February 26th hearing. During the February 26th hearing, you stated that a forensic expert 2. had been retained to ensure that Defendants' computers were searched thoroughly for responsive documents. Please provide us with any additional responsive documents that have been identified. 3. We have not received Defendants' supplemental responses to Interrogatories 2, 5, 6, and 7, as required by Magistrate Judge Lowe during the February 26th hearing. 4. In Mr. Goldberger's March 5 email, he identified several gaps in the Bates numbers of documents provided to us during discovery and requested that the documents bearing those Bates numbers be produced, or an explanation for the gaps be provided, but we have yet to receive a response from Defendants.

Sargent Shriver Chairman of the Board, Special Olympics International Dr. Ronald B. Sobel Senior Rabbi, Congregation Emanu-El of the City of New York John M. Templeton, Jr., M.D. Bryn Mawr, Pennsylvania

3000 K St., NW, Suite 220 Washington, DC 20007-5109 Phone: [phone] Fax: [phone] www.becketfund.org

Jacinda H. Conboy Page 2 of 2 April 22, 2010 5. At the February 26th hearing, we discussed the production of certain Town documents, which you had objected were too voluminous because of the timeframe requested. As Mr. Goldberger confirmed in his March 5 email, Plaintiffs seek the production of town documents dating to January 1, 2000. Please provide Defendants' responses and documents, to the extent they exist, no later than April 28. In the event you have any questions, please do not hesitate to contact me. Sincerely,

Lori H. Windham Senior Counsel

cc:

Russell L. Hirschhorn Daniel P. Goldberger Jason D. Gerstein Michael Mervis Eric Rassbach Rachelle L. Laroche

EXHIBIT 5

Case 7:09-cv-00007-NPM-GHL Document 59

Filed 05/07/10 Page 1 of 17

Case 7:09-cv-00007-NPM-GHL Document 59

Filed 05/07/10 Page 2 of 17

Case 7:09-cv-00007-NPM-GHL Document 59

Filed 05/07/10 Page 3 of 17

EXHIBIT 6

Page 1 of 1

Goldberger, Daniel P.
From: Sent: To: Cc: Subject: Jacinda Conboy [[e-mail]] Tuesday, June 15, 2010 8:39 AM Lori Windham; Goldberger, Daniel P. Jacinda Conboy Yoder

Attachments: Jacinda Conboy.vcf

Counselors, I am still reviewing the documents on Ms. Davis' personal computer. The size of the documents are increasingly long which has made my review significantly longer than I anticipated. I hope to have my review completed in the near future and to the extent anything is discovered that has not been previously produced I will produce the same to you promptly.
Jacinda H. Conboy, Esq. LEMIRE JOHNSON, LLC Attorneys at Law 2534 Rte. 9, PO Box 2485 Malta, NY 12020 phone [phone] fax [phone] email: [e-mail]
This electronic message contains information that may be legally confidential and/or privileged. The information is intended solely for the individual or entity named above and access by anyone else is unauthorized. If you are not the intended recipient, any disclosure, copying, distribution, or use of the contents of this information is prohibited and may be unlawful. If you have received this electronic transmission in error, please reply immediately to the sender and then delete the message.

8/13/2010

EXHIBIT 7

Proskauer Rose LLP 1585 Broadway New York, NY 10036-8299

July 23, 2010

By Email Jacinda Conboy, Esq. Lemire Johnson LLC 2534 Route 9, P.O. Box 2485 Malta, NY 12020 Re: Yoder, et al. v. Morristown, et al., No. 09-cv-0007 (TJM/GHL) Dear Jacinda:

Jason D. Gerstein Attorney at Law d 212.969.3134 f 212.969.2900 [e-mail] www.proskauer.com

We write in response to your July 15, 2010 letter, as well as to address ongoing deficiencies concerning Defendants' discovery obligations. In response to your inquiry about Marianne and David Fisher, please be advised that their communications have been appropriately identified on Plaintiffs' privilege log. The Fishers have acted as agents -- consulting and translating -- for Plaintiffs' counsel in connection with the above-referenced litigation, and thus their communications with Plaintiffs are protected by the attorney-client privilege and/or are attorney work product. See, e.g., United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) ("[T]he privilege must include all the persons who act as the attorney's agents."); Hudson Ins. Co. v. Oppenheim, 2010 NY Slip Op 2871, 1 (1st Dep't 2010) ("The privilege extends to communications of `one serving as an agent of either attorney or client.'"). Please also be advised that Mahon Clemens is an attorney with Lekki, Hill, Fischer & Duprey, who assisted the Amish prior to our involvement with the case. Separately, we remind you that although the Court directed the parties to refrain from taking any depositions until after it ruled on Defendants' pending motion, document discovery has not been stayed. (We assume you have the same understanding of the Court's order in light of your July 15, 2010 letter requesting information about Plaintiffs' privilege log.) Nevertheless, Defendants have failed to comply with the Court's order, first on February 26, 2010 and then more recently on May 24, 2010, that Defendants produce (on a rolling basis) all remaining electronic documents. To date, we have received only 305 documents. Defendants also have not responded to Plaintiffs' June 3, 2010 letter in which we identified numerous deficiencies in Defendants' privilege log. Please immediately advise when Defendants' document production will be completed and a response to Plaintiffs' June 3 letter will be forthcoming. If it is not in the very near future, we will request yet another conference with the Court on this issue.

Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, D.C.

Jacinda Conboy, Esq. July 23, 2010 Page 2 We look forward to receiving your response. Sincerely,

Jason D. Gerstein cc: Michael T. Mervis, Esq. Russell L. Hirschhorn, Esq. Daniel P. Goldberger, Esq. Lori Windham, Esq. Eric Rassbach, Esq. Rachelle L. Laroche, Esq.

EXHIBIT 8

BOARD OF ADVISORS
Hon. William P. Barr Former Attorney General of the United States Prof. Stephen L. Carter Yale Law School His Eminence Francis Cardinal George, O.M.I., Archbishop of Chicago Hon. Orrin G. Hatch United States Senator Prof. Douglas Laycock University of Michigan Law School Rev. Richard John Neuhaus Eunice Kennedy Shriver

May 19, 2010 By Electronic Mail Jacinda H. Conboy Lemire Johnson, LLC 2534 Route 9 P.O. Box 2485 Malta, NY 12020 Dear Jacinda: We are in receipt of Defendants' Privilege Log and Amended Privilege Log, received on May 12 and May 17, respectively. Please be advised that Plaintiffs do not believe that these documents comply with the requirements set forth in Fed. R. Civ. P. 26(b)(5). In particular, Defendants' Amended Privilege Log does not "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)(ii). Compliance with the Rules requires Defendants to do more than merely identify the type of document and the parties to the communication. See, e.g., Crawford v. Franklin Credit Mgmt. Corp., 261 F.R.D. 34, 42-43 (S.D.N.Y. 2009); Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325, 334-35 (N.D.N.Y. 2006). Accordingly, we request that Defendants produce a Second Amended Privilege Log that complies with the Rules prior to the Court conference scheduled for Monday, May 24, 2010. Sincerely,

Sargent Shriver Chairman of the Board, Special Olympics International Dr. Ronald B. Sobel Senior Rabbi, Congregation Emanu-El of the City of New York John M. Templeton, Jr., M.D. Bryn Mawr, Pennsylvania

3000 K St., NW, Suite 220 Washington, DC 20007-5109 Phone: [phone] Fax: [phone] www.becketfund.org

Lori H. Windham

EXHIBIT 9

Proskauer Rose LLP 1585 Broadway New York, NY 10036-8299

June 3, 2010

By Email Jacinda Conboy, Esq. Lemire Johnson LLC 2534 Route 9, P.O. Box 2485 Malta, NY 12020 Re: Yoder, et al. v. Morristown, et al., No. 09-cv-0007 (TJM/GHL) Dear Jacinda:

Jason D. Gerstein Attorney at Law d 212.969.3134 f 212.969.2900 [e-mail] www.proskauer.com

Pursuant to our discussion and Magistrate Judge Lowe's request at the May 24, 2010 Court conference, we are writing to identify the deficiencies in Defendants' Amended and Second Amended Privilege Logs, dated May 17, 2010 and May 20, 2010, respectively. (1) Insufficient Descriptions The descriptions provided in Defendants' Second Amended Privilege Log do not comply with the requirements set forth in Fed. R. Civ. P. 26(b)(5). Pursuant to the Federal Rules of Civil Procedure, Defendants' descriptions of documents should provide Plaintiffs with an understanding of what the document is about without divulging the privileged communication. It is not enough to merely identify the type of document and the parties to the communication. See e.g., Crawford v. Franklin Credit Mgmt. Corp., 261 F.R.D. 34, 42-43 (S.D.N.Y. 2009); Trudeau v. New York State Consumer Prot. Bd., 237 F.R.D. 325, 334-35 (N.D.N.Y 2006). Defendants' inadequate descriptions have prevented Plaintiffs from determining the applicability of the privilege to each logged document. For example, Defendants describe a certain facsimile cover sheet as regarding "Town of Morristown v. Beverly Morley." Other entries refer generally to "pending legal actions" or "status of legal matter." Plaintiffs have no way of knowing what subjects these documents even relate to and why they are relevant, let alone whether these documents are actually privileged.1 We request that Defendants provide descriptions sufficient to understand the nature of these documents. (2) Improper Claims to Privilege There are several documents, including invoices and facsimile cover sheets, that are improperly withheld as privileged. See Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514
1

It is also unclear as to whether non-privileged documents relating to these subjects have been produced.

Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, D.C.

Jacinda Conboy, Esq. June 3, 2010 Page 2 (S.D.N.Y. 2003); P&B Marina, Ltd. Partnership v. Logrande, 136 F.R.D. 50, 54 (E.D.N.Y. 1991), aff'd, 983 F.2d 1047 (2d Cir. 1992); Paramount Packaging Corp. v. Triple R Industries, Inc., No. 87-CV-18, 1988 U.S. Dist. LEXIS 1365 at *5 (N.D.N.Y. February 19, 1988). Invoices should be produced with a redaction covering any privileged description of legal services rendered, and each invoice should be separately identified. Defendants also fail to identify what documents, if any, were attached to the withheld facsimile cover sheets. If the attachments are privileged, the privilege log should reflect that information. If the attachments are not privileged or require redactions, they should be produced promptly. In addition, Plaintiffs do not believe that communications between Kay Davis and Frederick E. Paddock are privileged. It is our understanding that Mr. Paddock is an attorney for the Town of Hammond and Ms. Davis is employed by the Town of Morristown, and was employed in this capacity on April 26, 2007, at the time of the logged communication. Therefore, there does not appear to be any attorney-client relationship between Mr. Paddock and Ms. Davis. (3) Number of Entries Although Defendants' Amended Privilege Log lists ten privileged documents, Defendants' Second Amended Privilege Log lists only nine privileged documents. Please provide us with an explanation for this discrepancy or promptly produce the document (or, if already produced, identify the bates number of the document). In addition, please confirm that Defendants' Second Amended Privilege Log represents all privileged documents covering the period from January 1, 2000 to January 6, 2009. We ask that you correct or explain the above deficiencies and produce a Third Amended Privilege Log that complies with the Rules, along with any documents incorrectly withheld, by June 11, 2010. Sincerely,

Jason D. Gerstein cc: Michael T. Mervis, Esq. Russell L. Hirschhorn, Esq. Daniel P. Goldberger, Esq. Lori Windham, Esq. Eric Rassbach, Esq. Rachelle L. Laroche, Esq.

EXHIBIT 10