Alix v. McKinsey & Co., Inc. et al

Filing 360

ORDER denying 348 Letter Motion to Compel. Upon review of the parties' letters, the Court agrees with Alix and AlixPartners that the motion to compel should be denied because it seeks to compel AlixPartners to answer an interrogatory that i s more properly answered by Alix himself and because Alix has, in fact, properly provided the relevant information in response to the interrogatory served by other Defendants (subject, of course, to supplementation in the event that he comes into possession of additional information that is responsive to the interrogatory). See ECF Nos. 350 & 351. Accordingly, the letter-motion to compel is DENIED. The Clerk of Court is directed to terminate ECF No. 348. SO ORDERED. (Signed by Judge Jesse M. Furman on 4/12/2024) (tg)

April 2, 2024
VIA ECF
The Honorable Jesse M. Furman
United States District Court
Southern District of New York
Thurgood Marshall United States Courthouse
40 Foley Square
New York, NY 10007-1312
Re:

Jay Alix v. McKinsey & Co., Inc., et al., No. 18-CV-4141 (JMF)

Dear Judge Furman,
Defendant-Counterclaim Plaintiff Seth Goldstrom submits this letter-motion respectfully
requesting an order compelling Counterclaim Defendant AlixPartners, LLP (“AlixPartners”) to
respond to Interrogatory No. 3 served by Goldstrom on January 4, 2024, seeking information
relevant to Goldstrom’s claims and defenses. See Ex. A (Goldstrom’s First Interrogs. to
AlixPartners). The parties have met and conferred on this interrogatory response and are at an
impasse.
Introduction
“Discovery is not supposed to be a shell game, where the hidden ball is moved round and
round.” Archibald v. City of Hartford, 274 F.R.D. 371, 382 (D. Conn. 2011). Yet that is exactly
what AlixPartners and Plaintiff Jay Alix are doing with respect to Goldstrom’s Interrogatory
No. 3. This interrogatory seeks the identities of potential witnesses with knowledge about the
Second Amended Complaint’s allegations that Goldstrom and others participated in a “pay-toplay” scheme that harmed AlixPartners. Alix and AlixPartners’ responses have been a classic
discovery “shell game.” Alix stated that AlixPartners personnel had relevant knowledge but
failed to identify which specific “individual directors, officers, or employees,” stating that this
information would need to come from AlixPartners in “further discovery.” See Exhibit B at 12
(Alix’s Resps. and Objs. to McKinsey Defs’ First Set of Interrogs.). But AlixPartners refused to
answer, stating that the list of witnesses should come from Alix. See Exhibit C at 14-15
(AlixPartners’ Resps. and Objs. to Goldstrom’s First Set of Interrogs.).
This is the gamesmanship that Alix and AlixPartners intended when AlixPartners
“assigned” its claims to Alix, see Decl. of J. Alix ¶ 22 (Sept. 3, 2019), ECF No. 106 (Alix
admitting that the assignment was intended to shield AlixPartners from the “burden” of
litigation), and it is prejudicial to Goldstrom. The information sought in Interrogatory No. 3 is
relevant and important to Goldstrom’s defense to Alix’s RICO claim: though Alix relies
extensively on the supposed pay-to-play scheme in his complaint, he never alleges which
individuals were supposedly involved in exchanging referrals with McKinsey. It is also relevant
to Goldstrom’s defamation counterclaim: a truthful response can help Goldstrom demonstrate
Alix and AlixPartners’ practice of attacking Goldstrom’s reputation on grounds Alix knew to be

Hon. Jesse M. Furman
April 2, 2024
Page 2
false. The Court should compel AlixPartners, a party to this litigation and the assignor of Alix’s
claims, to respond to Goldstrom’s Interrogatory No. 3.
Argument
Goldstrom’s Interrogatory No. 3 to AlixPartners asks: “Identify all Persons with
knowledge concerning the purported ‘pay-to-play’ scheme alleged in paragraph 144 of the
Second Amended Complaint, including all alleged participants involved, directly or indirectly, in
the purported scheme.” AlixPartners has declined to respond to this interrogatory, stating that
Goldstrom must obtain this information from Plaintiff Jay Alix. See Ex. C at 14. As the party
resisting discovery, AlixPartners has the burden to justify its objections. Cohen v. Cohen, 2015
WL 4469704, at *5 (S.D.N.Y. June 29, 2015).
AlixPartners has failed to meet that burden and should be compelled to respond. The
claim by AlixPartners (the assignor) that the proper source for this information is Alix (the
assignee) is particularly abusive as a litigation tactic because Alix has pointed to AlixPartners as
the proper source for this information. In his own sworn response to an essentially identical
interrogatory, 1 Alix stated that unnamed “individual directors, officers, or employees of
AlixPartners” have knowledge of the alleged pay-to-play scheme, but said that he could not
identify them without “further discovery and factual development.” 2 Ex. B at 12 & 14.
Goldstrom sought discovery from AlixPartners directly, but AlixPartners refused to provide it,
asserting that the information “is more properly obtained from Plaintiff Jay Alix and/or his
advisors.” Ex. C at 14. In other words, Alix has pointed to AlixPartners as the source of relevant
information, and AlixPartners has pointed to Alix for it.
0F

1F

Alix and AlixPartners’ collective efforts to avoid disclosing the sources of and witnesses
for the allegations of criminal activity in Alix’s RICO complaint are abusive and improper.
“[C]ounsel is not entitled to transform discovery of the names of [relevant individuals] into a
game of hide-and-seek.” Archibald, 274 F.R.D. at 382 (quotations omitted); see also Hogue v.
Fruehauf Corp., 151 F.R.D. 635, 639 (C.D. Ill. 1993) (“Discovery cannot be a game of hide-andseek . . . When discovery requests are made by a party, the party to whom the request is made has
an obligation to respond accurately and fully.” (emphasis added)).
AlixPartners’ suggestion that it lacks this information is not credible because Alix is
asserting RICO claims “assigned” to him by AlixPartners, based on competitive harm allegedly
1

McKinsey Defendants’ Interrogatory No. 10 to Jay Alix asks: “Identify all Persons with
knowledge (including all alleged participants) concerning the purported ‘pay-to-play’ scheme
alleged in the Second Amended Complaint, including in paragraph 144.” See Ex. B at 12.
2

Alix otherwise identified only himself and Fred Crawford, AlixPartners’ former CEO, as
persons with knowledge of the alleged scheme. He did not identify a single alleged participant
in the scheme, even though the interrogatory calls for the identification of such people (if any
actually existed). See Ex. B at 12. Even AlixPartners, in its interrogatory objections, suggested
that a request for information regarding Alix’s allegations about the supposed pay-to-play
scheme was “imprecise, unclear, and otherwise unintelligible.” See Ex. C at 15.
2

Hon. Jesse M. Furman
April 2, 2024
Page 3
suffered by AlixPartners. There is no reason to think that AlixPartners is unable to identify
which of its directors, officers, or employees have information bearing on the harms that
AlixPartners supposedly suffered. See Rivera v. UPS, 325 F.R.D. 542, 546 (S.D.N.Y. 2018) (“A
party served with interrogatories under Rule 33 has a duty to ‘compile information within his
control’ and provide all information available in his responses.”) (citation omitted); see also
Twentieth Century Fox Film Corp. v. Marvel Enter., Inc., 2002 WL 1835439, at *3 (S.D.N.Y.
Aug. 8, 2002) (collecting cases and observing that “[a] corporation responding to interrogatories
must provide not only the information contained in its own files and possessed by its own
employees,” but also “all information under its control.”); In re Auction Houses Antitrust Litig.,
196 F.R.D. 444, 445-46 (S.D.N.Y. 2000) (entity was required to “exhaust[ ]” efforts to obtain
information held by former CEO that was responsive to an interrogatory); Top Jet Enters., Ltd. v.
Kulowiec, 2022 WL 280459, at *5 (S.D.N.Y. Jan. 31, 2022) (“parties cannot engage in
halfhearted or ineffective [discovery] efforts”).
AlixPartners has suggested that it has no responsibility to respond to this interrogatory
because it seeks information about allegations in Alix’s complaint, which AlixPartners says it did
not write. 3 But even non-parties who have no role in drafting the relevant pleadings are still
required to provide discovery, see Fed. R. Civ. P. 45; and AlixPartners, as the assignor of Alix’s
claims, is the obvious source of this information (assuming the allegations have a good faith
basis). To the extent that AlixPartners, reading Alix’s complaint, is unaware of any “pay-to-play”
scheme by which it was allegedly harmed (meaning there are no people to identify in response to
this interrogatory), it must say so. What it cannot do, however, is refuse to answer, see Hogue,
151 F.R.D. at 639, particularly where Alix has already identified AlixPartners as possessing this
information.
2F

No. 3.

Accordingly, AlixPartners should be compelled to answer Goldstrom’s Interrogatory

3

AlixPartners contends that it should not be responsible for discovery that can be
obtained from Alix due to the allocation of burdens. But that is just another way of pointing the
finger at Alix, who in turn is pointing the finger at AlixPartners. This circular disclaimer of
knowledge is unfair to Goldstrom and improper as a litigation tactic. In re Lyman Good Dietary
Supplements Litig., 2020 WL 3414927, at *4 (S.D.N.Y. June 22, 2020) (“failure to comply with
basic discovery rules, particularly when they concern evidence central to [the] claims, is
inexcusable and unjustified” and prejudicial).
3

Hon. Jesse M. Furman
April 2, 2024
Page 4
Respectfully submitted,
/s/ Reid M. Figel
Reid M. Figel
Bradley E. Oppenheimer
Robert C. Klipper
KELLOGG, HANSEN, TODD, FIGEL &
FREDERICK P.L.L.C.
1615 M Street, NW, Suite 400
Washington, D.C. 20036
[phone]
Counsel for Seth Goldstrom
cc: All Counsel of Record (via ECF)

Upon review of the parties' letters, the Court agrees with Alix and AlixPartners
that the motion to compel should be denied because it seeks to compel
AlixPartners to answer an interrogatory that is more properly answered by
Alix himself and because Alix has, in fact, properly provided the relevant
information in response to the interrogatory served by other Defendants
(subject, of course, to supplementation in the event that he comes into
possession of additional information that is responsive to the interrogatory).
See ECF Nos. 350 & 351. Accordingly, the letter-motion to compel is DENIED.
The Clerk of Court is directed to terminate ECF No. 348.
SO ORDERED.

April 12, 2024

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