Jablonski v. Special Counsel, Inc.
Filing
358
ORDER granting in part and denying in part 335 Motion to Strike document from the record; granting in part and denying in part 337 Motion to Strike document from the record. For the reasons stated above, Defendant's motions to strike are GRANTED IN PART and DENIED IN PART. The Clerk of Court is respectfully directed to strike ECF No. 325 from the docket, and to terminate the motions at ECF Nos. 335 and 337. (Signed by Judge Analisa Torres on 1/27/2025) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TERRI JABLONSKI,
Plaintiff,
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/27/2025
-against16 Civ. 5243 (AT)
SPECIAL COUNSEL, INC.,
ORDER
Defendant.
ANALISA TORRES, District Judge:
Plaintiff, Terri Jablonski, brings this action against Defendant, ADO Professional
Solutions, Inc., formerly known as Special Counsel, Inc. (“SCI”), alleging, inter alia, age
discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq. See generally Compl., ECF No. 63. Before the Court are Defendant’s motions to strike
portions of the record. ECF Nos. 335, 337. For the reasons stated below, the motions are
GRANTED IN PART and DENIED IN PART.
BACKGROUND1
SCI was a placement agency that assisted legal departments and law firms in recruiting
paralegals, attorneys, and other legal professionals. Def. 56.1 ¶¶ 1–2, ECF No. 325-1.2 SCI had
a database that contained personal and professional information on at least some applicants. See
id. ¶ 2. Plaintiff has worked as a paralegal. Id. ¶ 5. Plaintiff’s sister, Maria Jablonski (“Attorney
Jablonski”), who represents Plaintiff in this action, was listed in SCI’s database. See Compl.
¶ 75.
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The Court recites only the facts, allegations, and procedural details relevant to Defendant’s motions to strike.
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Citations to a paragraph of Defendant’s Rule 56.1 statement also include Plaintiff’s response.
Prior to August 2013, SCI had “either placed Plaintiff into employment positions with
[its] clients or had received an application from her.” Def. 56.1 ¶ 11. According to Plaintiff,
from August 2013 to July 2015, she applied for forty-one paralegal jobs advertised by SCI for
which she “was more than minimally qualified.” Compl. ¶ 44. She alleges that, to “prevent
recruiters from acting on her resumes,” SCI fabricated “negative reference[s]” in its database
under Plaintiff’s name. Id. ¶ 75. Specifically, Plaintiff claims that SCI saw Attorney Jablonski’s
name in its database and “changed [her] name” to Plaintiff’s name, then wrote “NMQ” next to
Plaintiff’s name “knowing that recruiters knew it meant ‘not minimally qualified’ and would
disqualify [Plaintiff] from all employment.” Id. Plaintiff alleges that SCI did not hire her for
any of the positions she applied to and instead hired younger, underqualified applicants. Id.
¶¶ 81–99.
Plaintiff commenced this action in 2016. ECF No. 1. Her third amended complaint, the
operative complaint, alleges, inter alia, that SCI discriminated against her based on her age in
violation of the ADEA; the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.;
and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. See generally
Compl. From November 2021 to July 2023, the parties engaged in contentious discovery
proceedings before the Honorable Ona T. Wang, relevant portions of which are discussed below.
See generally ECF Nos. 128, 310. In October 2023, Defendant moved for summary judgment.
ECF No. 319. As part of her opposition, Plaintiff submitted sworn declarations from herself and
Attorney Jablonski. See Pl. Decl., ECF No. 326; Att’y Decl., ECF No. 325.
Defendant moves to strike Attorney Jablonski’s declaration, arguing that the Court should
exclude it under Federal Rule of Civil Procedure 37(c)(1). First Mem. at 3, ECF No. 336.
Defendant also moves to strike portions of Plaintiff’s declaration, arguing that these portions
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contradict Plaintiff’s deposition testimony and constitute inadmissible hearsay. Second Mem. at
1–7, ECF No. 338. The Court addresses each motion in turn.
DISCUSSION
I.
Legal Standard
A district court “possesses the inherent authority to strike any submission it determines to
be abusive or otherwise improper under the circumstances.” Rubik’s Brand Ltd. v. Flambeau,
Inc., No. 17 Civ. 6559, 2021 WL 363704, at *5 (S.D.N.Y. Jan. 31, 2021) (citation omitted).
“Because a decision on [a] motion to strike may affect [a] movant’s ability to prevail on
summary judgment, it is appropriate to consider [a] motion to strike prior to [a] motion for
summary judgment.” Century Pac., Inc. v. Hilton Hotels Corp., 528 F. Supp. 2d 206, 213
(S.D.N.Y. 2007) (cleaned up) (citation omitted).
A. Rule 37(c)(1)
Federal Rule of Civil Procedure 26(a), which governs discovery, provides that a party
must disclose “the name . . . of each individual likely to have discoverable information—along
with the subjects of that information—that the disclosing party may use to support its claims or
defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 37, in turn, “authorizes courts to impose
sanctions when a party does not comply” with Rule 26. Atkins v. County of Orange, 372 F.
Supp. 2d 377, 395 (S.D.N.Y. 2005). Under Rule 37(c)(1), when “a party fails to provide
information or identify a witness as required by Rule 26(a)[,] . . . the party is not allowed to use
that information or witness to supply evidence on a motion . . . unless the failure was
substantially justified or is harmless.”
Rule 37(c)(1) is intended “to prevent the practice of sandbagging an opposing party with
new evidence.” Ebewo v. Martinez, 309 F. Supp. 2d 600, 607 (S.D.N.Y. 2004) (citation
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omitted). Under the rule, “the non-disclosing party has the burden to demonstrate that the failure
to disclose was substantially justified or . . . harmless.” Atkins, 372 F. Supp. 2d at 396. “A
failure to disclose is substantially justified . . . if there exists a genuine dispute concerning [a
party’s] compliance.” Wu v. Metro-N. Commuter R.R. Co., No. 14 Civ. 7015, 2016 WL
5793971, at *9 (S.D.N.Y. Aug. 4, 2016) (citation omitted). A failure to disclose “is harmless
when there is no prejudice to the party entitled to the disclosure.” Henrietta D. v. Giuliani,
No. 95 Civ. 641, 2001 WL 1602114, at *6 (E.D.N.Y. Dec. 11, 2001) (citation omitted). The
Court must weigh four factors when considering whether to exclude evidence under
Rule 37(c)(1): (1) the party’s explanation for the failure to comply with the disclosure
requirement; (2) the importance of the excluded evidence; (3) the prejudice suffered by the
opposing party as a result of having to prepare to address the new evidence; and (4) the
possibility of a continuance. See Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
A district court has “wide discretion” to impose exclusionary sanctions under
Rule 37(c)(1). Design Strategy, Inc. v. Davis, 469 F.3d 284, 294 (2d Cir. 2006). However,
because the imposition of sanctions is a “drastic remedy,” Rule 37(c)(1) is usually “applied in
those rare cases where a party’s conduct represents flagrant bad faith and callous disregard of the
Federal Rules of Civil Procedure.” Sterling v. Interlake Indus. Inc., 154 F.R.D. 579, 587
(E.D.N.Y. 1994).
B. Sham Affidavit Rule and Inadmissible Hearsay
Under the sham affidavit rule, “factual allegations that might otherwise defeat a motion
for summary judgment will not be permitted to do so when they are made for the first time in the
[party]’s affidavit opposing summary judgment and that affidavit contradicts [the party’s] own
prior deposition testimony.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); see Hayes
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v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“[A] party may not create an issue of
fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or
addition, contradicts the affiant’s previous deposition testimony.”); Mack v. United States, 814
F.2d 120, 124 (2d Cir. 1987) (“It is well settled in this circuit that a party’s affidavit which
contradicts [her] own prior deposition testimony should be disregarded on a motion for summary
judgment.”). The Court may, therefore, “strike declarations made in support of summary
judgment if the declaration directly and unequivocally contradicts previous deposition
testimony.” Perez v. Manna 2nd Ave. LLC, No. 15 Civ. 4655, 2016 WL 7489040, at *2
(S.D.N.Y. Dec. 28, 2016); see also Zorbas v. U.S. Tr. Co., N.A., 48 F. Supp. 3d 464, 473
(E.D.N.Y. 2014) (striking certain paragraphs from plaintiff’s declaration under the sham
affidavit rule).
Additionally, Federal Rule of Civil Procedure 56(c)(4) requires “[a]n affidavit or
declaration used to support or oppose a [summary judgment] motion” to “set out facts that would
be admissible in evidence.” See LaSalle Bank Nat’l Ass’n v. Nomura Asset Cap. Corp., 424 F.3d
195, 205 (2d Cir. 2005) (“[E]vidence considered on summary judgment must generally be
admissible evidence.”). Under Rule 56(c)(2), a party may therefore object to material that
“cannot be presented in a form that would be admissible in evidence.” “Even on summary
judgment, a district court has wide discretion in determining which evidence is admissible . . . .”
LaSalle Bank, 424 F.3d at 205 (citation omitted). Accordingly, the Court may strike portions of
an affidavit that contain inadmissible hearsay. New World Sols., Inc. v. NameMedia Inc., 150 F.
Supp. 3d 287, 305 (S.D.N.Y. 2015).
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II.
Analysis
A. Attorney Jablonski’s Declaration
Defendant moves to strike Attorney Jablonski’s declaration under Rule 37(c)(1), arguing
that exclusion is warranted due to Plaintiff’s failure to disclose Attorney Jablonski under
Rule 26(a) and Plaintiff’s representations during discovery that Attorney Jablonski has no
knowledge of the issues in this action. See First Mem. at 3–4. The Court agrees.
In May 2022, Defendant moved to compel the deposition of Attorney Jablonski, arguing
that her testimony was relevant “to the factual allegations in the [c]omplaint mentioning her by
name.” ECF No. 184 at 9. Plaintiff opposed the motion, claiming that it was an attempt to
disqualify Attorney Jablonski rather than to obtain discoverable information. ECF No. 189 at 18.
Plaintiff asserted that Attorney Jablonski had “no personal knowledge of any of the references to
her name;” that Plaintiff’s allegations “all pertain to [Defendant’s] own records, which [Attorney
Jablonski] has no personal knowledge of;” and that Attorney Jablonski “is without personal
knowledge of the issues” in this action. Id. at 8–9. Plaintiff also stated that there was “no factual
issue in dispute regarding” Attorney Jablonski’s testimony and that Defendant had no “valid
need to depose her.” Id. at 9.
That month, at a conference before Judge Wang, Attorney Jablonski told Judge Wang,
“I’m not taking a deposition in this case, I’m not relevant.” ECF No. 187 at 61:11–14. In May
2023, Plaintiff again argued that Defendant’s motion to compel was an “absurd[]” effort “to
disqualify [Attorney Jablonski] in a case that has been litigated for the past seven years by
simply having her become a fact witness . . . by involving her in the facts.” ECF No. 290 at 12.
Plaintiff also stated that Attorney Jablonski was not a fact witness in this action because Plaintiff
had not “named [her] as a witness in the case.” Id. at 14.
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In June 2023, Judge Wang held a conference on Defendant’s motion to compel. See ECF
Nos. 294, 308. At the conference, Attorney Jablonski told Judge Wang that she did not “see the
relevance” of Defendant’s motion; that she was “not making [herself] a fact witness;” and that
she was “not testifying in this case.” ECF No. 308 at 41:5–9. Relying on Attorney Jablonski’s
representations, Judge Wang denied Defendant’s motion to compel her deposition. Id. at 41:20–
21; ECF No. 294.
Plaintiff now submits Attorney Jablonski’s declaration in support of Plaintiff’s opposition
to Defendant’s summary judgment motion. See generally Att’y Decl. In her declaration,
Attorney Jablonski makes factual allegations concerning, inter alia, her employment by SCI,
evidence produced by Defendant, Plaintiff’s qualifications as a paralegal, and Defendant’s
“retaliatory animus” against Attorney Jablonski. Id. Plaintiff submits this declaration despite
refusing to identify Attorney Jablonski under Rule 26(a), opposing Defendant’s efforts to depose
Attorney Jablonski, and representing to the Court, over the course of a year, that Attorney
Jablonski has no knowledge of the issues in this case. Plaintiff’s conduct “represents flagrant
bad faith and callous disregard of the Federal Rules of Civil Procedure,” Sterling, 154 F.R.D. at
587, and is “precisely the type of sandbagging that Rule 37(c)(1) is designed to prevent,”
Alexander v. Fidalgo, No. 10 Civ. 8587, 2013 WL 12316346, at *3 (S.D.N.Y. Apr. 10, 2013)
(citation omitted).
Plaintiff has not sustained her burden to demonstrate that her failure to disclose was
substantially justified or harmless. See Atkins, 372 F. Supp. 2d at 396. She offers no
justification for not identifying Attorney Jablonski under Rule 26(a), and there is no genuine
dispute concerning compliance, particularly in light of Plaintiff’s representations to the Court.
See Metro-N., 2016 WL 5793971, at *9. Plaintiff’s late production is not harmless because it
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“prevents Defendant from inquiring at a deposition or otherwise investigating the evidence”
offered by Attorney Jablonski, and therefore prejudices Defendant.3 Codename Enters., Inc. v.
Fremantlemedia N. Am., Inc., No. 16 Civ. 1267, 2018 WL 3407709, at *3 (S.D.N.Y. Jan. 12,
2018); see Henrietta D., 2001 WL 1602114, at *6.
For the foregoing reasons, the Court concludes that the exclusion of Attorney Jablonski’s
declaration is appropriate here, and the Court will not consider it in adjudicating the summary
judgment motion. Defendant’s motion to strike Attorney Jablonski’s declaration is, therefore,
GRANTED.
B. Plaintiff’s Declaration
1. Sham Affidavit Rule
Next, Defendant moves to strike specific assertions from paragraphs 3 and 7 of Plaintiff’s
declaration under the sham affidavit rule, arguing that the assertions contradict Plaintiff’s
deposition testimony. See Second Mem. at 1–6.
i.
Paragraph 3
In paragraph 3 of her declaration, Plaintiff asserts that, on January 30, 2013, she met with
an SCI employee regarding one of her SCI applications. Pl. Decl. ¶ 3. To support her allegation
that the meeting took place on January 30, Plaintiff attaches a document that she describes as a
“Peoplesoft Profile”—a purported SCI application from Plaintiff dated January 30. Id. ¶ 8; ECF
No. 326-1.
Additionally, the Patterson factors weigh in favor of excluding Attorney Jablonski’s declaration. See Patterson,
440 F.3d at 117. Plaintiff offers no adequate explanation for her failure to comply with Rule 26(a), and Defendant
was prejudiced by having to prepare to address the new evidence in Attorney Jablonski’s declaration. Although the
parties make no argument about the importance of the declaration or how the Court should weigh this factor, the
Court concludes that the declaration is not important considering Plaintiff’s representations regarding Attorney
Jablonski’s lack of knowledge of the issues in this case. Finally, the possibility of a continuance weighs in favor of
exclusion because, given the length of litigation and discovery in this case, “a continuance would be inappropriate
and against the interests of judicial economy.” Codename, 2018 WL 3407709, at *3.
3
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At her deposition, Plaintiff testified that she did not “remember the specific date” of the
meeting. ECF No. 339-1 at 214:2. Although Defendant argues that this testimony is
contradicted by Plaintiff’s declaration that the meeting took place on January 30, Plaintiff’s
declaration merely “amplifies . . . [her] prior testimony.” Langman Fabrics v. Graff
Californiawear, Inc., 160 F.3d 106, 112 (2d Cir. 1998) (citation omitted); see id. (“If there is a
plausible explanation for discrepancies in a party’s testimony, the court considering a summary
judgment motion should not disregard the later testimony because of an earlier account that was
. . . simply incomplete.”). Because Plaintiff did not “directly and unequivocally contradict[]” her
deposition testimony, Perez, 2016 WL 7489040, at *2, the Court shall not strike the assertion in
Plaintiff’s declaration that the meeting took place on January 30, 2013.
ii.
Paragraph 7
Defendant also moves to strike several assertions from paragraph 7 of Plaintiff’s
declaration. See Second Mem. at 5–6. In paragraph 7, Plaintiff states that she “ha[s] worked
since 1991 as a Paralegal.” Pl. Decl. ¶ 7. She also asserts that she “worked in a Medical Office
called the Cosmetic Center for four years from 2008-2012 in Pearl River, New York, doing
administrative tasks, medical billing and gathering and drafting responses to law firm’s inquiries
of patient medical records.” Id. Plaintiff further alleges that she worked at “Holland and Knight
in Insurance Maritime law for 1 year,” at “Fleming Zulack for a year,” at “Kramer Levin Naftalis
& Franklin for four months,” and at “Chase Manhattan Bank . . . for almost a year.” Id. As
explained below, Plaintiff’s deposition testimony contradicts these assertions.
During discovery, Plaintiff disclosed at least two of her resumes (the “First Resume” and
“Second Resume”). The First Resume states that she worked at the Cosmetic Center from 2008
to 2012 as a “PT Administrative Assistant/Medical Billing Assistant.” First Resume at 11, ECF
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No. 59-1. At her deposition, Plaintiff was asked at length about the First Resume and her work
at the Cosmetic Center. She stated that “everything reflected on th[e] [First Resume]” was
correct. ECF No. 339-1 at 35:18–36:15. When told that her work at the Cosmetic Center did not
“indicate anything legal related” and instead indicated “a medical practice administrative
assistant” position, Plaintiff responded, “Well it’s more administrative — it was more
paperwork.” Id. at 49:21–50:2. When asked if she did “anything besides [what she listed in the
job] description,” Plaintiff replied, “It’s whatever is listed is what I did.” Id. at 49:15–20. When
asked if she had “any other jobs” while working at the Cosmetic Center, Plaintiff responded, “I
don’t remember. I don’t recall.” Id. at 41:8–12. Accordingly, Plaintiff’s paragraph 7 assertions
that she “ha[s] worked since 1991 as a Paralegal” and that she “gather[ed] and draft[ed]
responses to law firm’s inquiries of patient medical records” at the Cosmetic Center contradict
her deposition testimony and will not be considered by the Court. See Zorbas, 48 F. Supp. 3d at
473.
Similarly, Plaintiff’s assertions in paragraph 7 of her declaration concerning the time that
she worked at certain entities contradict her deposition testimony. At her deposition, Plaintiff
was asked whether “the amounts of time reflected on [her Second Resume were] correct as to
how long [she] worked at each of [the] entities [listed therein].” ECF No. 339-1 at 64:19–22.
Plaintiff responded, “Yes. Yes.” Id. at 64:23. The Second Resume states that Plaintiff worked
at “Holland & Knight” for “9 months;” her declaration states that she worked there for “1 year.”
Second Resume at 8, ECF No. 323-7; Pl. Decl. ¶ 7. The Second Resume states that Plaintiff
worked at “Flemming Zulack & Williamson” for “9 months;” her declaration states that she
worked there for “a year.” Second Resume at 8; Pl. Decl. ¶ 7. The Second Resume states that
Plaintiff worked at “Kramer Levin” for “3 months;” her declaration states that she worked there
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for “four months.” Second Resume at 8; Pl. Decl. ¶ 7. Finally, the Second Resume states that
Plaintiff worked at “Chase” for “6 months;” her declaration states that she worked there “for
almost a year.” Second Resume at 8; Pl. Decl. ¶ 7. Accordingly, Plaintiff’s paragraph 7
assertions concerning the time she worked at these entities contradict her deposition testimony
and will not be considered by the Court. See Zorbas, 48 F. Supp. 3d at 473.
For the foregoing reasons, Defendant’s motion to strike specific assertions from
paragraphs 3 and 7 of Plaintiff’s declaration is GRANTED IN PART and DENIED IN PART.
2. Inadmissible Hearsay
Defendant also moves to strike Exhibit 4 from Plaintiff’s declaration, arguing that it
contains “inadmissible hearsay and lacks a proper evidentiary foundation.” Second Mem. at 7.
Although Rule 56(c)(2) provides that a party moving for summary judgment may object to
material that “cannot be presented in a form that would be admissible in evidence,” the 2010
Committee Notes to that subsection make clear that “[t]here is no need to make a separate
motion to strike” such inadmissible material. Fed. R. Civ. P. 56(c)(2) advisory committee’s note
to 2010 amendment. Because evidence inadmissible at trial is insufficient to create a genuine
dispute of material fact, the Court need not engage in separate analysis of the motion to strike.
See Sauerhaft v. Bd. of Educ. of the Hastings-on-Hudson Union Free Sch. Dist., No. 05 Civ.
9087, 2009 WL 1576467, at *8 (S.D.N.Y. June 2, 2009) (“A court may decline to conduct a
line-by-line analysis and instead simply disregard the allegations that are not properly
supported.”). Accordingly, Defendant’s motion to strike Exhibit 4 from Plaintiff’s declaration is
DENIED, but the Court shall consider Defendant’s arguments where relevant in the summary
judgment analysis.
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CONCLUSION
For the reasons stated above, Defendant’s motions to strike are GRANTED IN PART and
DENIED IN PART. The Clerk of Court is respectfully directed to strike ECF No. 325 from the
docket, and to terminate the motions at ECF Nos. 335 and 337.
SO ORDERED.
Dated: January 27, 2025
New York, New York
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