Snitzer et al v. The Board of Trustees of the American Federation of Musicians and Employers' Pension Fund et al

Filing 171

SEALED ORDER: Plaintiff's counsel must file a response no later than July 7, 2020, addressing inadvertently disclosed emails. SO ORDERED. (Signed by Judge Valerie E. Caproni on 7/06/2020) (ama) Modified on 7/7/2020 (ama).

Case 1:17-cv-05361-VEC Document 171 Filed 07/06/20 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDREW SNITZER and PAUL LIVANT, individually
and as representatives of a class of similarly situated
persons, on behalf of the American Federation of
Musicians and Employers’ Pension Plan,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 07/06/2020

Plaintiffs,
v.
THE BOARD OF TRUSTEES OF THE AMERICAN
FEDERATION OF MUSICIANS AND EMPLOYERS’
PENSION FUND, THE INVESTMENT COMMITTEE
OF THE BOARD OF TRUSTEES OF THE
AMERICAN FEDERATION OF MUSICIANS AND
EMPLOYERS’ PENSION FUND, RAYMOND M.
HAIR, JR., AUGUSTINO GAGLIARDI, GARY
MATTS, WILLIAM MORIARITY, BRIAN F. ROOD,
LAURA ROSS, VINCE TROMBETTA, PHILLIP E.
YAO, CHRISTOPHER J.G. BROCKMEYER,
MICHAEL DEMARTINI, ELLIOT H. GREENE,
ROBERT W. JOHNSON, ALAN H. RAPHAEL,
JEFFREY RUTHIZER, BILL THOMAS, JOANN
KESSLER, MARION PRESTON,

No. 1:17-cv-5361 (VEC)
SEALED ORDER

Defendants.
VALERIE CAPRONI, United States District Judge:
WHEREAS putative class member Martin Stoner has informed the Court of a set of
email communications that appears to have been inadvertently sent to Mr. Stoner by Plaintiffs’
counsel (attached as Exhibit 1);
WHEREAS the communications appear to show Plaintiff’s counsel performing a search
for documents containing references to Mr. Stoner and other potential class members;
IT IS HEREBY ORDERED that Plaintiff’s counsel must file a response no later than
July 7, 2020, addressing the purpose of the searches, its relevance to counsel’s representation of
the class, and Mr. Stoner’s concern that counsel is engaged in “opposition research” adverse to

Case 1:17-cv-05361-VEC Document 171 Filed 07/06/20 Page 2 of 8

class members’ interests. To the extent that Plaintiff’s counsel seeks to file the response under
seal, counsel must follow the undersigned’s Individual Practices concerning sealing and also
provide a copy to Mr. Stoner via email.
IT IS FURTHER ORDERED that Plaintiff’s counsel must explain whether Plaintiffs are
asserting privilege over the disclosed emails, and if so, why class members should not have
access to the emails and why any privilege has not been waived by the disclosure.
The Clerk of Court is respectfully directed to restrict the viewing level for this Order and
make it accessible only to the parties. The docket text for the entry should read “ORDER:
Plaintiff’s counsel must file a response no later than July 7, 2020, addressing inadvertently
disclosed emails.”

SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: July 6, 2020
New York, New York

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Fw: AFM

Exhibit 1

martin stoner <[e-mail]>
Thu 7/2/2020 9:39 PM
To: Caproni NYSD chambers
Cc: Steven A. Schwartz <[e-mail]>; Robert J. Kriner <[e-mail]>; Myron Rumeld
<[e-mail]>; Jani K. Rachelson <[e-mail]>

Dear Judge Caproni,
I am sorry to bother you again and apologize profusely for this communication, but I received a very strange email
from Snitzer Class Steven Schwartz tonight in which it appears that he is doing opposition research into members of
the class including myself-the class that he is supposed to represent. I believe that this is more evidence that class
counsel is not adequately representing class members,and I intend to file a complaint against all the lawyers involved
in this email for Unprofessional Conduct. Since I am not a lawyer and cannot pretend to understand internal legal
communications, perhaps you can ask class counsel what the hell he thinks he is doing behind my back and the back
of many other class members who have opposed this settlement? Shame on him!
Respectfully,
Martin Stoner
----- Forwarded Message ----From: Steven A. Schwartz <[e-mail]>
To: Dave W. Birch <[e-mail]>
Cc: Mark B. DeSanto <[e-mail]>; martin stoner <[e-mail]>
Sent: Thursday, July 2, 2020, 8:22:46 PM EDT
Subject: Re: AFM
Mark - also do a run for martin stoner, his email is
[e-mail]
Steven A. Schwartz
Partner
361 West Lancaster Avenue
Haverford, PA 19041
[phone] (direct dial)
[phone] (telecopy)

ADMITTED TO PRACTICE IN PENNSYLVANIA
PRIVILEGED INFORMATION/CONFIDENTIALITY NOTICE
The information hereby transmitted, including any attachments, is intended only for the person or entity to
which it is addressed and may contain confidential and/or privileged material. Any review, retransmission,
copying, dissemination or other use of, or taking of any action in reliance upon, this information by persons or
entities other than the intended recipient is strictly prohibited, and all liability arising therefrom is disclaimed. If
you received this communication in error, please contact the sender and delete the material from any
computer and appropriately dispose of any copies. Unless expressly stated, the contents of this
communication, including attachments, were not intended or written to be used as legal, financial or tax
advice.
On Jul 2, 2020, at 8:08 PM, Dave W. Birch <[e-mail]> wrote:

Steve

https://outlook.office365.com/mail/[e-mail]/AAMkADdiZTk1Zjc5LWVjNGUtNDFlMC1hMmZkLTk0ZDI4ZDRlN2I4N…

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Everything is ready for you now. Anything else I can do to help?

-Dave

From: Dave W. Birch
Sent: Thursday, July 2, 2020 7:27 PM
To: Steven A. Schwartz <[e-mail]>
Cc: Mark B. DeSanto <[e-mail]>
Subject: RE: AFM

Chris Deschene’s docs are ready

The last Snitzer pdf about 50% complete.

From: Dave W. Birch
Sent: Thursday, July 2, 2020 6:50 PM
To: Steven A. Schwartz <[e-mail]>
Cc: Mark B. DeSanto <[e-mail]>
Subject: RE: AFM

Steve,

I’m still working on the plaintiffs documents and Chris Deschene’s docs but all the other documents exported from the
defendants database are organized by custodian here: J:\AFM\SAS to Review

The plaintiffs productions that are ready to search now are here: J:\AFM\PDF Productions\OCR'd

Picking up dinner now and I’ll finish as soon as I get back.

-Dave

From: Steven A. Schwartz <[e-mail]>
Sent: Thursday, July 2, 2020 6:05 PM
To: Dave W. Birch <[e-mail]>
Cc: Mark B. DeSanto <[e-mail]>
Subject: Re: AFM

Yes that’s a nice small set for me to review.
https://outlook.office365.com/mail/[e-mail]/AAMkADdiZTk1Zjc5LWVjNGUtNDFlMC1hMmZkLTk0ZDI4ZDRlN2I4N…

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Steven A. Schwartz
Partner

361 West Lancaster Avenue
Haverford, PA 19041
[phone] (direct dial)
[phone] (telecopy)

ADMITTED TO PRACTICE IN PENNSYLVANIA

PRIVILEGED INFORMATION/CONFIDENTIALITY NOTICE
The information hereby transmitted, including any attachments, is intended only for the person or entity to
which it is addressed and may contain confidential and/or privileged material. Any review, retransmission,
copying, dissemination or other use of, or taking of any action in reliance upon, this information by persons or
entities other than the intended recipient is strictly prohibited, and all liability arising therefrom is disclaimed. If
you received this communication in error, please contact the sender and delete the material from any
computer and appropriately dispose of any copies. Unless expressly stated, the contents of this
communication, including attachments, were not intended or written to be used as legal, financial or tax
advice.
On Jul 2, 2020, at 5:57 PM, Dave W. Birch <[e-mail]> wrote:

Steve / Mark

While I’m processing the Plaintiffs productions to be searchable I ran searches against our defendants productions for
the terms below:

AFM Database (DEF)

# Documents

Chris Deschene

75

Steve Nathan

12

Robbie Buchanan

0

John Mark Casstevens

0

Armen Donelian

46

Marilyn Coyne

2

Larry Franklin

0

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Jody Jarowey

20

[e-mail]

79

[e-mail]

0

[e-mail]

0

[e-mail]

0

[e-mail]

21

[e-mail]

0

[e-mail]

0

Would you like me to export the documents with hits to pdf for review?

From: Mark B. DeSanto <[e-mail]>
Sent: Thursday, July 2, 2020 5:43 PM
To: Steven A. Schwartz <[e-mail]>
Cc: Dave W. Birch <[e-mail]>
Subject: Re: AFM

I just touched base with Dave, and we are on it. We’ll let you know when everything is pulled and saved.
Mark B. DeSanto
Associate

Office: 610-642-8500 x316
Fax: [phone]
Email: [e-mail]

PRIVILEGED INFORMATION/CONFIDENTIALITY NOTICE: The information hereby transmitted, including any
attachments, is intended only for the person or entity to which it is addressed and may contain confidential and/or
privileged material. Any review, retransmission, copying, dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other than the intended recipient is strictly prohibited, and all
liability arising therefrom is disclaimed. If you received this communication in error, please contact the sender and
delete the material from any computer and appropriately dispose of any copies. Unless expressly stated, the contents
of this communication, including attachments, were not intended or written to be used as legal, financial or tax advice.

On Jul 2, 2020, at 5:20 PM, Steven A. Schwartz <[e-mail]> wrote:
https://outlook.office365.com/mail/[e-mail]/AAMkADdiZTk1Zjc5LWVjNGUtNDFlMC1hMmZkLTk0ZDI4ZDRlN2I4N…

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Mark - Can you do a quick search to see if we have any documents in
our database from the guys listed bleow – names & emails provided.
Would like to see docs they wrote.

Dave – I see in the J/AFM/ under PDF productions & FTP upload we
have the Snitzer & Livant productions we made to defendants. But they
are PDF and not searchable. You may have converted & sent via FTP to
defendants I’d like to be able to search their productions to pluck our
docs authored by the guys listed below. Can you make them
searchable without it being a massive time suck– would save me time if
possible. Thanks.

Chris Deschene
Chris Deschene <[e-mail]>
Steve Nathan
Steve Nathan [e-mail]

Robbie Buchanan, John Mark Casstevens, Armen Donelian, Marilyn
Coyne, Larry Franklin & Jody Jarowey
Robbie Buchanan [e-mail]
Mark Casstevens [e-mail]
[e-mail]
marilyn coyne [e-mail]
[e-mail]

Steven A. Schwartz
Partner
https://chimicles.com/wpcontent/uploads/2019/05/Chimicles-1.jpg

361 West Lancaster Avenue
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Haverford, PA 19041
[phone] (direct dial)
610-724-5125 (cell)

ADMITTED TO PRACTICE IN PENNSYLVANIA

PRIVILEGED INFORMATION/CONFIDENTIALITY NOTICE
The information hereby transmitted, including any attachments, is intended only for the person
or entity to which it is addressed and may contain confidential and/or privileged material. Any
review, retransmission, copying, dissemination or other use of, or taking of any action in
reliance upon, this information by persons or entities other than the intended recipient is strictly
prohibited, and all liability arising therefrom is disclaimed. If you received this communication in
error, please contact the sender and delete the material from any computer and appropriately
dispose of any copies. Unless expressly stated, the contents of this communication, including
attachments, were not intended or written to be used as legal, financial or tax advice.

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