Lankau v. Luxoft Holding, Inc. et al

Filing 71

OPINION re: 44 MOTION for Leave to File First Amended Complaint filed by Maik Lankau. The Plaintiff has also moved to file his First Amended Complaint following certain discovery testimony. The motion is granted. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 2/1/2019) (cf)

' ,,.J

UNITED STATES DISTRICT COURT
SOUTHE RN DISTRICT OF NEW YORK

-------------------------------------x
MA I K LANKAU,
Plaint if f ,
-against-

16 Civ . 8690
OPINION

LUXOFT HOLDING, I NC . and LUXOFT
USA , INC . ,
Defendants.
-------------------------------------- x

APP E ARANCES:
Attorneys for Plaintiff
TAYLOR & COHEN LLP
40 Worth Street , 10 th Floor
New York , NY 100 1 3
By:
Zachary Taylor, Esq.
Robert Cohen , Esq.

Attorneys for Defendants
SHERMAN WELLS SYLVESTER & STAMELMAN LL P
1185 Av enue of the Americas , 3 rd Floor
New York , NY 10036
By:
Jordan Weinreich , Esq.

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· ' - ' FIL ED

Sweet, D.J.

The plaintiff Maik Lankau ("Lankau" or the
"Plaintiff" ) has moved pursuant to Rule 37 F. R. Civ . P. to
compel the Luxoft Holding, Inc. and Luxoft USA, Inc.

("Luxoft"

or the "Defendants") to answer Plaintiff 's Interrogatories 8 and
9(a). The motion was marked fully submitted on July 25, 2018 .
Because the interrogatories are not unduly oppressive , the
motion to compel is granted.

The Defendants have moved pursuant to the protective
order for the return of two documents on the grounds of
inadvertent production of privileged documents. The documents at
issue are part of an emai l chain .

On June 8 , 2018 , Defendants made production of
documents, consisting of 34 ema ils and attachments totaling 175
pages. The text of nearly every email was redacted in full, with
the exception of two it erations of an email string. Both
iterations of this email string were produced without any
redactions .

3

On June 13, 2018, counsel for Plaintiff wrote to
Defendants' counsel, Jordan Weinreich ("Weinreich") identifying
these two documents by their Bates numbers and requesting the
removal of their confidentiality designations so that Plaintiff
could file them on ECF in support of the present motion to
compel. Weinreich responded in writing that he would review the
documents and review concerning the confidentiality
designations.

On June 14, 2018, Weinreich wrote agreeing to remove
the confidentiality designations from the two documents.

On June 27 , 2018, Plaintiff filed the present Motion
to Compel. As part of its submission, Plaintiff attached the
emails in reliance on Weinreich's consent to file them publicly.
On July 2, 2018, Weinreich asserted that the documents whose
confidentiality designations he had previously withdrawn were
privileged.

Vo luntary disclosure of communications protected by
the attorney-client privilege results in waiver of a claim of
privilege as to those documents. See, e.g.,

In re Steinhardt

Partners, L.P., 9 F.3d 230, 235 (2 nd Cir. 1993); U.S.
1 F. Supp.2d 256 , 263 (S.D.N.Y. 1998)
4

v . Gangi,

("Even privilege documents

are not protected if a party discloses them."). When a party
contends that the inadvertent production of a document should
not result in waiver, the court applies a four-factor ba l ancing
test that was originally set forth . In Lois Sportswear, U. S . A.,
Inc. v. Levi Strauss
(1)

&

Co ., 104 F .R . D. 103 (S . D. N. Y. 1985)

the reasonableness of the precautions

taken to prevent inadvertent disclosure ;
(2)

the time taken to rectify the error;

(3)

the scope of the discovery and the

extent of the disclosure before their return is
sought ; and
(4)

"overreaching " issues of fairness.

The Defendants have not described any procedures h put
in place to ensure that privileged materials would not be
inadvertently produced. When Plaintiff identified the emails by
Bates number and requested that the confidentiality designation
be removed so they could be publicly filed. By agreeing ,
Defendants have waived their privilege over the emails . See ,
e . g. , S . E.C . v. Cassano, 189 F.R.D. 83 , 86 (S.D.N.Y. 1999)
("Although the SEC acted promptly once it determined that the
document had been produced , a factor cutt i ng in its favor , the
time taken to rectify the error , in all the circumstances, was
excessive . There was no excuse for waiting 12 days to f i nd out

5

- ..
·

what the document was.")

J .P. Morgan Chase

&

Co ., No . 08 Civ.

2400 , 2009 WL 970940, at *6 (S . D.N.Y . April 10, 2009)

("[F]from

the December 2009 date when Defendant learned (or ... shou l d
have learned) of the email ' s disclosure , Defendant took an
inexplicably long time to demand its destruction or return." See
also LaSalle Bank Nat. Ass ' n v. Merrill Lynch Mortg . Lending,
Inc., No. 04 Civ. 5452 , 2007 WL 2324292 , at *5 (S . D. N. Y. Aug.
13 , 2007)

("This is not a case in which defense counsel acted in

a prompt fashion-i . e ., within a day or two-as to warrant a
finding of no waiver ." ). Under these circumstances the privilege
has been waived and the emails will not be returned.

The Plaintiff has also moved to file his First Amended
Complaint follow in g certain discovery testimony. The motion is
granted .

It is so orde red.

New York, NY
February

2019

U.S.D.J.
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