Shih v. Petal Card, Inc. et al

Filing 264

ORDER: Defendant Petal Card has improperly instructed its Rule 30(b)(6) designees not to answer certain questions concerning its recent corporate reorganization on relevance grounds. Consequently, Petal Card shall produce Mr. McCann for up to one hour of additional questioning, no later than February 17, 2022, concerning that subject. All relief not specifically granted herein is DENIED. Judge Moses will conduct a status conference on April 20, 2022 at 11:00 a.m. in Courtroom 20A of the D aniel Patrick Moynihan United States Courthouse. In advance of the conference, and no later than April 15, 2022, the parties shall submit a joint letter updating the Court on the progress of expert discovery, as well as any settlement efforts. (And as further set forth herein.) SO ORDERED. (Status Conference set for 4/20/2022 at 11:00 AM in Courtroom 20A, 500 Pearl Street, New York, NY 10007 before Magistrate Judge Barbara C. Moses.) (Signed by Magistrate Judge Barbara C. Moses on 1/26/2022) (jca)

Case 1:18-cv-05495-JFK-BCM Document 264 Filed 01/26/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

1/26/22

CASSANDRA SHIH,
Plaintiff,

18-CV-5495 (JFK) (BCM)
ORDER

-againstPETAL CARD, INC., f/k/a CREDITBRIDGE,
INC., et al.,
Defendants.
BARBARA MOSES, United States Magistrate Judge.

For the reasons discussed at the January 26, 2022 status conference, it is hereby ORDERED
as follows:
1.

Continued 30(b)(6) deposition. Defendant Petal Card has improperly instructed its
Rule 30(b)(6) designees not to answer certain questions concerning its recent
corporate reorganization on relevance grounds. Consequently, Petal Card shall
produce Mr. McCann for up to one hour of additional questioning, no later than
February 17, 2022, concerning that subject.

2.

Production of de-privileged documents.
a.

Defendants need not produce the documents described in paragraph (a) on
page 2 of the parties' January 19, 2022 joint letter (Dkt. No. 262).
Defendants have plausibly asserted that these documents were properly
withheld based on the guidelines provided in this Court's October 6, 2021
Order (Dkt. No. 228), and plaintiffs have not provided any persuasive
evidence to the contrary.

b.

Defendants shall produce, no later than February 9, 2022, the emails listed
in paragraph (b) on page 2 of the joint letter, as well as any other
communications between Andrew Endicott and Jason Gross that have been
withheld in reliance on an "embedded privilege" theory – namely, that the
withheld emails embed or reflect privileged communications from Jason
Gross's father Kenneth Gross – that do not appear on the face of their
privilege log. The Court notes that the log does not even mention Kenneth
Gross in connection with the paragraph (b) emails. Further, defendants have
failed to substantiate their new claim of privilege, in that they have made no
factual showing that Kenneth Gross is or was licensed to practice in New
York, that Petal Card formed a "professional relationship" with him "for the
purpose of facilitating the rendition of legal advice or services," or that
whatever advice he provided to defendants in the emails at issue was
"predominantly of a legal character." Ambac Assur. Corp. v. Countrywide
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Case 1:18-cv-05495-JFK-BCM Document 264 Filed 01/26/22 Page 2 of 2

Home Loans, Inc., 27 N.Y.3d 616, 624, 36 N.Y.S.3d 838, 842-43 (2016).
The paragraph (b) documents shall be produced no later than February 9,
2022.
c.

Defendants need not produce the documents listed in paragraph (c) on page
2 of the joint letter. Although these documents also assert privilege over
communications to or from Kenneth Gross, that assertion is clear from the
face of their log, and consequently should have been challenged, if at all,
long before now.

3.

All relief not specifically granted herein is DENIED.

4.

Status conference. Judge Moses will conduct a status conference on April 20, 2022
at 11:00 a.m. in Courtroom 20A of the Daniel Patrick Moynihan United States
Courthouse. In advance of the conference, and no later than April 15, 2022, the
parties shall submit a joint letter updating the Court on the progress of expert
discovery, as well as any settlement efforts.

Dated: New York, New York
January 26, 2022
SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

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