Cooke et al v. DB 85 Gym Corp et al

Filing 25

ENDORSED LETTER addressed to Judge Alvin K. Hellerstein from Corey Stark and Sarir Zandi dated 12/5/2011 re: Counsel writes regarding a discovery dispute concerning Defendants application of Local Civil Rule 33.3 to Plaintiffs' First Set of Interrogatories. Counsel request that defendants' request should be denied. ENDORSEMENT: I have reviewed Requests 1-16. All objections to the requests are over-ruled, and those answered must be answered fully and responsively. The senior counsel responsible for the case on each side shall meet for 2 hours at plaintiffs counsel's office, face to face, to discuss the remaining requests and interrogatories with a view to compliance. (Signed by Judge Alvin K. Hellerstein on 12/5/2011) (jfe)

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Hon. Alvin K. Hellerstein

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CookeIRodino v. DB 85 Gym Corp. et al. ' ; /

Dear Judge Hellerstein:

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We are the respective counsel for Plaintiffs anroe~endanlts in the above­
refereneed matter.
We write regarding a discovery dispute concerning Defendants'b'" \I
application. of Local Civil Rule 33.3 ("Rule 33.3") to Plaintiffs' First Set of l).~~
Interrogatones.

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On November 4, 2011, Plaintiffs' attorney Corey Stark wrote to Defendant[p.£
attorney Sarir Zandi in a good faith effort to resolve this dispute. l On November 11,
2011, Sarir Zandi responded to the November 4, 2011 letter on behalf of Defendants.2
On November 17, 20 II, Corey Stark telephoned Sarir Zandi in a final attempt to resolve
this dispute absent judicial intervention. Despite the above-referenced correspondence
and brief telephone call, we were not able to resolve this fundamental disagreement over
Defendants' application of Rule 33.3.

I Corey Stark's November 4,2011 leiter is enclosed.
'Sarir landi's November 11.2011 letter is enclosed.

THE DWECK LAW FIRM, LLP

Hon. Alan K. Heller.lein

December 5, 201 J

Page 2 of5

Plaintiffs' Position

This is an employment discrimination case. Briefly stated, this matter is based
upon shocking and repeated harassment, and disparate treatment/discipline, which
eventually culminated in the illegal termination of Plaintiffs' employment. Defendants
harassed and discriminated against Plaintiffs because they are both homosexual females.
Defendants have improperly attempted to use Rule 33.3 to avoid discovery
obligations. Rule 33.3 provides, in pertinent part, that "interrogatories will be restricted
to those seeking names of witnesses with knowledge of information relevant to the
subject matter of the action, the computation of each category of damage alleged, and the
existence, custodian, location and general description of relevant documents." Despite
Plaintiffs' compliance with Rule 33.3, Defendants chose to object to 19 of the 21
interrogatories as outside the scope of Rule 33.3 and fail to provide substantive responses
to any of the 19 interrogatories. Defendants' attempt to utilize Rule 33.3 to avoid
discovery obligations should not be permitted.
Approximately half of the 19 interrogatories to which Defendants have refused to
provide a substantive response (Interrogatory Nos. 2, 3, 4, 5,6, 10, II, 12, and 21) are
tailored to obtain the names of witnesses? Specifically, Plaintiffs' interrogatories call for
Defendants to identify: individuals who made decisions or participated in the decision­
making process concerning the termination of Cooke's andlor Rodino's employment by
DB Gym (Interrogatory No.2); each individual who was aware or notified that either
Plaintiff would be terminated by DB Gym (Interrogatory No.3); each individual who
participated in the decision to hire either Plaintiff (Interrogatory No.4); each replacement
of Cooke (Interrogatory No.5); each replacement of Rodino (Interrogatory No.6); each
Pilates Instructor and Trainer employed by DB Gym at the relevant locations
(Interrogatories Nos. 10, II and 12); and each employee of DB Gym whose employment
was terminated during the relevant time period (Interrogatory No. 21). Each individual
that Plaintiffs seek to have Defendants identify is a witness or potential witnesses to the
information relevant to this employment discrimination action. Accordingly, the scope of
Plaintiffs' interrogatories is entirely appropriate and Defendants' objections are
misplaced.
The remaining interrogatories at issue (Interrogatory Nos. 7, 8, 9, 13, 14, 15, 16,
17, 18 and 19) call for Defendants to identify documents that are relevant to this
employment discrimination action. Specifically, Plaintiffs seek for Defendants to
identify the following: all documents concerning any discussion held during the relevant
time period regarding the termination of the employment of either Plaintiff (Interrogatory
No.7); all documents concerning the termination of the employment of either Plaintiff
'Plaintiffs' First Set oflnterrogatones and Defendants' responses are annexed hereto.

THE DWECK LAW FIRM, LLP

Hon. Alan K. Hellerstein
December 5, 2011

Page 3 of5

(Interrogatory No.8); each of DB Gym's policies or rules that either Plaintiff allegedly
violated during the relevant time period (Interrogatory No.9); all warnings given to any
DB Gym employee during the relevant time period for training outside clients
(Interrogatory No. 13); all Discipline imposed upon any DB Gym employee during the
relevant time period for training outside clients (Interrogatory No. 14); each complaint
issued by Cooke to DB Gym during the relevant time period (Interrogatory No. 15); all
documents generated as a result of any investigation concerning any complaint identified
in response to Interrogatory No. 15 (Interrogatory No. 16); each complaint issued by
Rodino to DB Gym during the relevant time period (Interrogatory No. 17); and all
documents generated as a result of any investigation concerning any complaint identified
in response to Interrogatory No. 15 (Interrogatory No. 18). It is beyond dispute that each
of these interrogatories calls for Defendants to identifY documents that are relevant to the
subject matter of this employment discrimination action. Defendants Rule 33.3
objections are therefore inappropriate.
A simple review of the interrogatories in question reflects that they are restricted
to requests for the identification of witnesses and documents. Since Plaintiffs have
complied with the letter and spirit of Rule 33.3, Defendants should not be permitted to
use it as a shield to avoid discovery obligations. Accordingly, Plaintiffs respectfully
request that Your Honor resolve this discovery dispute by directing Defendants to
provide a substantive response to each of the foregoing interrogatories without any
further delay.

Defendants' Position
This is a sexual orientation, gender discrimination and hostile work envirorunent
action brought by plaintiffs Deborah Cooke ("Cooke") and Christina Rodino ("Rodino")
(together "Plaintiffs") against David Baron Gym (the "Gym") and two of its employees,
Kevin Kavanaugh ("Kavanaugh") and Carl Helmle ("Helmle") (together "Defendants").
Defendants adamantly deny the baseless allegations asserted against them in Plaintiffs'
Complaint. Upon a review of the facts of this case, it is clearly evident that Plaintiffs
were legitintately terminated because they violated company policy by training outside of
the Gym, without permission.
This letter arises out of a disagreement between counsel for the parties regarding
the scope of Local Civil Rule 33.3. Local Civil Rule 33.3 states that "interrogatories will
be restricted to those seeking names of witnesses with knowledge of information relevant
to the subject matter of the action, the computation of each category of damage alleged,
and the existence, custodian, location and general description of relevant documents,
including pertinent insurance agreements, and other physical evidence, or information of
a similar nature." See L.Civ. R. 33.3(a). Interrogatories that go beyond these topics
"may only be served (I) if they are a morc practical method of obtaining the information

THE DWECK LAW FIRM, LLP

Hon. Alan K. Hellerslein
December 5, 20 II
Page 4 of5

sought than a request for production or a deposition, or (2) if ordered by the court." See
L.Civ. R.33.3(b).
Plaintiffs' Interrogatory numbers 2, 3, 4, 5, 6, 10, 11, 12 and 21 are in direct
contravention of Local Civil Rule 33.3(a) given that they do not request the names of
witnesses with knowledge of information as evidenced by the plain wording of the
Interrogatories themselves. It is Defendants' position that since the aforementioned
Interrogatories are clearly far broader than contemplated by this rule, they do not require
responses. Additionally, the more practical method of obtaining the information sought
in these requests would be at a deposition, or at the conclusion of other discovery, not
through preliminary interrogatories.
Furthermore, Plaintiffs' Interrogatory numbers 7, 8, 9,13,14, 15, 16,17 and 19,
are in violation of Rule 33,3 in that document requests are a decidedly more practical
method of obtaining the information they seek and, thus, they do not require responses.
See Madanes v. Madanes, 186 FR.D. 279, 290 (s'D.N Y. /999) C'A document request is
a far more practical means of obtaining such information than is an interrogatory.
Therefore, these interrogatories violate local rule 33.3 and need not be answered"). In
fact, where appropriate, the information sought by these Interrogatories was provided in
Defendants' responses to Plaintiffs' First Request for the Production of Documents. (See
Defendants' responses to Plaintiffs' First Request for the Production of Documents
attached hereto.)
Lastly, without reason, Plaintiffs have failed to respond to Defendants'
Interrogatory number 24 which requests information relating to the damages Plaintiffs are
claiming. (See Defendants' First Set of Interrogatories to Plaintiffs attached hereto.)
Therefore, Defendanta respectfully request that Plaintiffs be directed by the Court to
respond to Defendants' Interrogatory number 24. Further, based on the above,
Defendants respectfully request that the Court orders that Plaintiffs' Interrogatories need
not be answered by Defendants given that said Interrogatories violate Local Civil Rule
33.3.
Plaintiffs' Position Concerning Defendants' Interrogatory No. 24
Defendants are attempting to mislead this Court. It is argued above that Plaintiffs
failed to respond to Defendants' Interrogatory No. 24 "without reason." Contrary to
Defendants' claim, Plaintiff objected to Interrogatory No. 24 because it is vague,
confusing, overbroad, and fails to identifY the information sought with reasonable
specificity.4 Despite Plaintiffs' specific objection, Defendants have made no attempt to
, Plaintiffs' response 10 Defendants' First Set of Interrogatories is annexed hereto.

THE DWECK LAW FIRM, I..I..P

Hon. Alan K. Hellerstein
December 5. 20 I I
Page 5 of 5

clarify or amplify the interrogatory and have not provided a factual or legal basis to
overcome Plaintiffs' objection. In addition, Defendants have not engaged in a good faith
effort to resolve this dispute before raising the issue with this Court. Accordingly,
Defendants' request should be denied.
We thank Your Honor for considering the foregoing.
Respectfully,
THE DWECK LAW FIRM, LLP

lsi
Corey Stark (CS-3897)

Enclosures

GORDON & REES LLP

lsi
Sarir Zandi (SZ-0094)

Judge Hellerstein wrote:

"1 have reviewed Requests 1-16. All objections to the requests are over-ruled, and

those answered must be answered fully and responsively. The senior counsel

responsible for the case on each side shall meet for 2 hours at plaintiffs counsel's

office, face to face, to discuss the remaining requests and interrogatories with a

view to compliance.

12-5-11

Alvin K. Hellersetin"