Jablonski v. Special Counsel, Inc.

Filing 245

ORDER denying 237 Letter Motion for Discovery; denying 242 Letter Motion to Compel. The Court has reviewed ECF Nos. 237, 241, 242, and 243. Plaintiff's motion for a protective order against production of two of Plaintiff's notebooks used during her initial deposition on July 29, 2022, is DENIED. (As further set forth herein.) Plaintiff's counsel is directed to bring the two notebooks to Plaintiff's continued deposition on October 19, 2022, and produce them to Defendant's counsel prior to the commencement of the deposition. The Clerk of Court is respectfully directed to close ECF Nos. 237 and 242. SO ORDERED. (Signed by Magistrate Judge Ona T. Wang on 10/18/2022) (va)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TERRI JABLONSKI,
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:
Plaintiff,
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-against:
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SPECIAL COUNSEL, INC.,
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:
Defendant.
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:
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16-CV-5243 (ALC) (OTW)
ORDER

ONA T. WANG, United States Magistrate Judge:
The Court has reviewed ECF Nos. 237, 241, 242, and 243. Plaintiff’s motion for a
protective order against production of two of Plaintiff’s notebooks used during her initial
deposition on July 29, 2022, is DENIED.
Plaintiff argues that the notebooks contain privileged work product because they
contain “legal research and digests of depositions of the case” by Plaintiff, who is also a
paralegal for the case. (ECF 237). Plaintiff then argues that even if the Court concludes that the
notebooks should be produced, the Court should first conduct an in-camera inspection of the
notebooks to determine which portions of the notebooks waive subject matter, and to excise
those portions from production. (ECF 237).
Plaintiff’s counsel states that the notebooks “contain mostly work product prepared by
[the Plaintiff”] and then goes in detail to describe the contents of the notebooks as “Plaintiff’s
authorizing of draft deposition digests of Defendant’s deposition witnesses, that she apparently
prepared in the notebook authored in her own handwriting, and Plaintiff’s digests of case law
research and analysis authored in her own handwriting.” (ECF 237-3 at 3). The Court accepts as

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true Plaintiff’s counsel’s representations of the allegedly privileged materials, and declines to
engage in in-camera review of the notebooks at this time. See Gruss v. Zwirn, 296 F.R.D. 224,
231 (S.D.N.Y. 2013) (“Courts have discretion to determine whether in camera review is
appropriate, based in part on the specificity of counsel's representations”); United States v.
Jacques Dessange, Inc., No. S299-CR-1182 (DLC), 2000 WL 310345, at *4 (S.D.N.Y. Mar. 27,
2000) (finding that in camera inspection of attorney interview notes was “unnecessary” where
the attorney's representations described the “nature of the documents ... with sufficient
particularity for the Court to make a reliable judgment about the level of protection which
should be given to the documents”).
The Court finds that while the work product privilege attaches to the notebooks, it was
waived when Plaintiff used the notebooks to refresh her recollection. Documents consulted or
reviewed by a witness while testifying must be produced to the adverse party. See Fed. R. Evid.
612(a)(1); Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 637 (E.D.N.Y. 1997) (ordering
expert witness to produce notes that he “repeatedly consulted” at his deposition to refresh his
recollection); Thomas v. Euro RSCG Life, 264 F.R.D. 120, 122 (S.D.N.Y. 2010) (holding attorney
client privilege waived where plaintiff reviewed notes fifteen minutes before her deposition,
and relied on them in connection with her deposition testimony). During Plaintiff’s deposition,
Defendant’s counsel asked Plaintiff if she was looking through one of the notebooks for
purposes of refreshing her recollection, to which she responded: “Yes, exactly.” (ECF 228-1 at
71). Plaintiff’s use of the notebook therefore squarely falls within the disclosure requirements
of Rule 612. The Court has also reviewed the video recording of Plaintiff’s deposition, submitted
to the Court via separate flash drive, and finds that both notebooks at issue were used during
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the deposition and must be turned over to Defendants.
Plaintiff’s counsel is directed to bring the two notebooks to Plaintiff’s continued
deposition on October 19, 2022, and produce them to Defendant’s counsel prior to the
commencement of the deposition.
The Clerk of Court is respectfully directed to close ECF Nos. 237 and 242.
SO ORDERED.

s/ Ona T. Wang
Ona T. Wang
United States Magistrate Judge

Dated: October 18, 2022
New York, New York

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