Nesbeth v. New York City Management LLC et al

Filing 229

ORDER terminating 228 Letter Motion to Compel. The contents of this letter will be addressed at the conference scheduled for February 14, 2020. The Clerk of Court is respectfully directed to close the Motion at ECF No. 228. SO ORDERED. (Signed by Magistrate Judge Sarah L Cave on 2/10/20) (yv)

The contents of this letter will be
addressed at the conference
scheduled for February 14, 2020.
The Clerk of Court is respectfully
directed to close the Motion at
ECF No. 228. L. Pitcher
Stacey

Obermayer Rebmann Maxwell & Hippel LLP
521 Fifth Avenue | 34th Floor
New York, NY 10175
P: 212.922.9182
F: 917.994.2545

Direct Dial: 917-994-2551
SO ORDERED
2/10/2020
[e-mail]
www.obermayer.com

February 7, 2020
Honorable Sara L. Cave
U.S. District Court, Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, NY 10007-1312
Re:

Nicholas Nesbeth v. New York City Management, LLC, et al
Docket No.: 1:17-cv-08650-ER

Dear Judge Cave:
In accordance with Your Honor’s January 29, 2020 Order (Doc. 225), Defendants jointly
submit this letter outlining the deficiencies in Plaintiff’s discovery responses.
As set forth more fully below, Defendants identify numerous deficiencies in Plaintiff’s
discovery responses. In Defendants’ view, the requested discovery falls into two categories: (1)
discovery that will assist the parties in continuing a productive settlement discussion on February
21, 2020 (“Category 1”); and (2) discovery that is necessary to litigate the dispute should the
matter not resolve (“Category 2”). In the interest of efficiency and judicial economy, Defendants
propose that the Court address the Category 1 discovery, and schedule a telephone conference
after the Settlement Conference to address Category 2 discovery should the matter not resolve.
With regard to Category 1, there are only two categories of documents that Defendants believe
are necessary to resolve in advance of the settlement conference. Those items include: (A)
documents showing what income the Plaintiff has earned since January 18, 2016; and (B)
documents showing what income the Plaintiff earned from other sources from 2010 through
2016.
Documents showing the income Plaintiff has earned since January 18, 2016 are directly
relevant to Plaintiff’s claim for lost wages. Documents showing the income Plaintiff earned
from other sources while he worked for the Defendants is relevant for two main reasons. First,
Plaintiff’s resume states that he started working for Metro North in February 2016, however,
Plaintiff’s counsel claims that Plaintiff had been working for Metro North throughout his
employment with Defendants. Thus, in order to assess Plaintiff’s lost wages, Defendants need
the earnings records to compare the income before and after he stopped working for Defendants.
Second, one of the main issues in this case is the number of hours per week that Plaintiff worked

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for Defendants. Being able to assess how much time Plaintiff spent working for other employers
goes to whether a jury is likely to believe that Plaintiff worked 72 hours per week for Defendants
and also worked X number of hours per week at a second job. Therefore, Defendants request
that Plaintiff be ordered to produce records showing what he has earned since he stopped
working for Defendants and what he earned from other sources while working for Defendants.
While Defendants do not believe that any of Plaintiff’s other deficiencies need to be
resolved in advance of the settlement conference, to preserve the record and reserve their right to
raise the remaining discovery deficiencies, Defendants separately state the following:
Besen Defendants
The Besen Defendants served interrogatories and requests for production on the Plaintiff
on November 7, 2019. Thus, Plaintiff’s responses were due by December 7, 2019. While
Plaintiff provided document production directed to all Defendants on December 3rd, Plaintiff did
not provide any objections or written responses to the Besen Defendants’ discovery requests
until January 7, 2020. (Exhibit A.) In addition to being untimely, there are a number of
deficiencies in Plaintiff’s specific objections and responses.
Good Faith Efforts
Counsel for the Besen Defendants sent correspondence to Plaintiff’s counsel on January
27, 2020, specifically outlining the deficiencies in Plaintiff’s objections and responses and
requesting a response by February 3, 2020. (Exhibit B.) To date, Plaintiff has failed to even
respond.
Waived Objections
Plaintiff’s responses to the discovery served by the Besen Defendants were due by
December 3rd, but were not served until January 7th, approximately 35 days after they were due.
While those responses were dated December 3rd, throughout there are statements such as “which
were previously produced to Defendants in early December, 2019.” Moreover, Plaintiff’s
counsel acknowledged on January 7, 2020, in an e-mail to defense counsel, that the responses
provided in response to the Besen Defendants’ discovery requests were changed from those
produced in response to the other defendants’ requests. (Exhibit C.) In addition, Mr. Nesbeth
did not sign a Verification for his responses to the Besen Defendants’ requests until January 8,
2020. Thus, it should be clear that, while dated December 3rd, the Plaintiff did not prepare or
serve objections and/or responses to the specific requests served by the Besen Defendants until
January 2020.
In the Southern District, when a party fails to timely respond to an opposing party’s
discovery demands, they are deemed to have waived all objections to said demands. See
Rahman v. Smith & Wollensky Rest. Grp., Inc., 2008 U.S. Dist. LEXIS 741 (S.D.N.Y.) (Jan. 07,
2008, Francis M.J.) (holding that defendants failure to timely respond to plaintiff’s discovery

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demands waived all objections to the plaintiff’s requests). Therefore, Plaintiff waived any and
all objections to the Besen Defendants’ discovery demands and should be ordered to supplement
the responses to withdraw all objections.
Specific Deficiencies
There are a number of deficiencies in Plaintiff’s objections and responses. They are
outlined in detail in the deficiency letter sent to counsel. (Exhibit B.) Accordingly, Besen
Defendants hereby incorporate the deficiencies set forth therein. However, in general, the
deficiencies include: failure to identify any individuals in response to the interrogatories; citing
between 77 and 192 pages in response to all of the document requests, rather than identifying the
responsive pages, and where frequently, none of the documents cited are actually responsive;
objecting to every single document request on the grounds of privilege and that the documents
are in Defendants’ possession or are more readily available to Defendants; in some instances
citing to the Amended Complaint, rather than indicating that there are no responsive documents;
refusing to produce documents concerning other persons who performed work at the subject
properties (which is necessary to pin down the universe of people who can testify as to the time
Plaintiff worked at the properties); refusing to produce documents that he might have obtained or
have access to from his wife; refusing to produce documents concerning the eviction action when
it is Plaintiff who continues to maintain its relevance; and objecting to certain requests as being
“overly vague and ambiguous,” but not explaining how.
Hamilton Heights Cluster Associates L.P.
HHCA LP has similar concerns regarding Plaintiff’s responses as those set forth by the
Besen Defendants. With regard to Plaintiff’s interrogatory responses, Plaintiff’s responses fail to
identify the witnesses and location of documents where requested. Plaintiff objects to requests
seeking identity of witnesses and documents as outside the scope of Local Rule 33, for
overbreadth, and that the information should be in Defendant’s possession, or are “patently
irrelevant.” (See, Exhibit D, Plaintiff’s Objections and Responses to HHCA LP’s Interrogatory
Responses 2, 4, 5, 6, 7, 8, 9, 11, 15 and 16).
With regard to Plaintiff’s response to Defendant HHCA LP’s document requests, Plaintiff
refers Defendant to documents; however, the documents do not appear to be responsive and it is
unclear whether documents exist. (See, Exhibit D, Document Request Nos. 13-25, 27-40 and
42). In addition, Plaintiff objected to every single document request on the ground that the
documents are in Defendants’ possession or are more readily available to Defendants. The
Partnership is entitled to know what documents are in Plaintiff’s possession. Therefore, these
objections are improper. Moreover, such objections are incorrect as to some of the requests. For
example, Request Nos. 10 and 11 request documents pertaining to Plaintiff’s medical treatment,
which would not be more readily available to Defendants. Similarly, Request No. 7 requests
information regarding Plaintiff’s income since February 2016, which is not information that
would be in Defendants’ possession. Plaintiff objected to every single document request on the

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ground that they are privileged. If Plaintiff possesses responsive documents that he believes are
privileged, he must produce a privilege log.
Plaintiff has not provided documents responsive to Requests Nos. 7, 8 and 9. This matter
includes claims of wage and hour violations. HHCA LP is seeking information to confirm what
Plaintiff was paid during the period that he worked at the buildings. HHCA LP requested all
records of payments made to Plaintiff from any of the Defendants, and other sources, for the
period August 2010 to present, including pay stubs, bank statements, tax returns, W-2’s and
1099s (Request Nos. 7, 8, and 9). Plaintiff provided services at the Buildings for approximately
six (6) years. In discovery, Plaintiff produced copies of approximately nine checks. Plaintiff
has not provided any further paystubs or bank statements, and has not provided IRS Form W-2
or 1099s or tax returns for the applicable years. Plaintiff claims that his work for other
employers is patently irrelevant, however, as discussed above, it is relevant to the allegations of
lost income.
Under Rule 26(b) of the Federal Rules of Civil Procedure, the scope of discovery is
limited to “non-privileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case,” where “the burden of the proposed discovery” is not “outweigh[ed]
[by] its likely benefit.” Fed. R. Civ. P. 26(b)(l).
With regard for the request for tax returns, Defendant HHCA LP writes to note its request
for tax returns, but acknowledges that the request may be premature, and is willing to await a
decision on the need for Plaintiff’s tax returns to a date following his deposition.
With regard to the request for tax returns, Defendant HHCA LP seeks to confirm the
employers for whom Plaintiff worked, and what his income was during the period of his
employment. Plaintiff’s tax returns are not privileged documents, however, HHCA LP
acknowledges that courts are reluctant to order their discovery in part because of the “private
nature of the sensitive information contained therein, and in part from the public interest in
encouraging the filing by taxpayers of complete and accurate returns.” See Smith v. Bader, 83
F.R.D. 437, 438 (S.D.N.Y. 1979) (citing Mitsui & Co. Inc. v. Puerto Rico Water Resources
Authority, 79 F.R.D. 72, 80 (D.P.R. 1978); Payne v. Howard, 75 F.R.D. 465, 470 (D.D.C.
1977); Wiesenberger v. W. E. Hutton & Co., 35 F.R.D. 556, 557 (S.D.N.Y. 1964)).
In order to reconcile privacy concerns with liberal pretrial discovery, a two-pronged
inquiry must be used when determining whether a party’s tax returns should be produced
for discovery. Chen v. Republic Rest. Corp., 07 Civ. 3307 (LTS) (RLE), 2008 U.S. Dist. 24000,
at *4 (S.D.N.Y. Mar. 26, 2008) (citing Cooper v. Hallgarten & Co., 34 F.R.D. 482, 484
(S.D.N.Y. 1964)). Tax documents should not be provided for discovery purposes unless (1) they
appear relevant to the subject matter of the action, and (2) there is a compelling need for the
documents because the information contained therein is not otherwise readily obtainable. Id. at
4-5 (citing Smith v. Bader, 83 F.R.D. 437 (S.D.N.Y. 1979)). See also Ellis v. City ofNew York,
243 F.R.D. 109, 111-112 (S.D.N.Y. 2007). Notably, HHCA LP is not seeking information

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regarding Mr. Nesbeth’s tax identification number or his wife’s income in the event that any
joint returns were filed.
In a more typical wage an hour action, Courts have denied defendants’ requests for
plaintiff’s IRS-related records generally on the grounds that the employer has the obligation to
maintain records, and there are other means of obtaining the information. Here, however,
Defendant HHCA LP relied on managing agents, who, for reasons that have been discussed with
the Court are not in possession of records. Thus, there is a compelling need in this case to
request from Plaintiff further information regarding payments to plaintiff, that are not present in
other actions.
Urban Green
Urban Green joins in the concerns raised by the other defendants regarding Plaintiff’s
discovery deficiencies. We also note that Plaintiff’s recent letter to the Court, which purported
to set out concerns regarding Urban Green’s discovery responses, was incorrect in several
material respects. This letter is not the place to detail those points, but we would not want to
have the Court come away with the impression that Urban Green agreed with Plaintiff’s
characterization of Urban Green’s own discovery responses.
Safeguard
Safeguard Realty Management, Inc. (“Safeguard”) voices many of the same concerns
regarding the deficiencies in Plaintiff’s document production as those voiced by HHCA LP.
Specifically, Plaintiff lodged the Eighth, Tenth, Twelfth and Thirteenth Causes of Action in his
Second Amended Complaint dated, March 8, 2019, seeking damages under the Fair Labor
Standards Act and New York Labor Law for alleged wage-related claims, yet has produced scant
documentation supporting such claims, especially as against Safeguard. That is, Plaintiff’s
production of nine (9) checks, without any other paystubs or bank statements, tax returns, or
otherwise, is sorely deficient.
Safeguard also joins in the requests of its co-defendants for Plaintiff to produce
documentation substantiating Plaintiff’s other alleged employment during the subject time
period. Plaintiff’s production of records showing what he has earned since he stopped working
for Defendants and what he earned from other sources while working for Defendants is certainly
relevant and Plaintiff has not voiced any meritorious objection thereto.
Very truly yours,
/s/ Stacey L. Pitcher
Stacey L. Pitcher

cc:

/s/ Laura Juffa
Laura Juffa

/s/ David V. Mignardi
David V. Mignardi

/s/ Andrew Hayes
Andrew Hayes

Laurie E. Morrison, Esq. (via ECF)

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