Bennett v. Cuomo et al
ORDER: Accordingly, the Court orders as follows: 1. December 1, 2023, Ms. Bennett shall prepare and serve a privilege log (the "Log") reflecting communications (i) responsive to the Subpoenas and (ii) dated between the date on which Ms. Ben nett engaged Ms. Katz and/or KBK to represent her in connection with the Interview and March 15, 2021. 2. By December 8, 2023, counsel for Ms. Bennett and Ms. DeRosa shall meet and confer and select 16 exemplars (the "Exemplars") from the L og for the Court's in camera review. 3. By December 11, 2023, counsel for Ms. Bennett shall submit to the Court the Log and the Exemplars through the Court's file-share system, instructions for which the Court will email to Ms. Bennett's counsel. SO ORDERED. (Signed by Magistrate Judge Sarah L. Cave on 11/14/2023) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDREW M. CUOMO, MELISSA DEROSA, JILL
DESROSIERS, and JUDITH MOGUL,
CIVIL ACTION NO.: 22 Civ. 7846 (VSB) (SLC)
SARAH L. CAVE, United States Magistrate Judge.
Before the Court is the motion of Plaintiff Charlotte Bennett (“Ms. Bennett”) seeking to
quash two document subpoenas (the “Subpoenas”) served by Defendant Melissa DeRosa
(“Ms. DeRosa”) on Ms. Bennett’s counsel, Debra Katz (“Ms. Katz”) and her law firm, Katz Banks
Kumin LLP (“KBK”). (ECF No. 121 (the “Motion”)). In brief, Ms. Bennett argues that the
Subpoenas seek information protected in whole or in part by the attorney-client privilege and/or
the work-product protection (the “Privileges”), neither of which have been waived. (Id.) In her
opposition to the Motion and cross-motion to compel, Ms. DeRosa argues that Ms. Bennett has
not met her burden to show that the Privileges apply, in particular, by failing to submit a privilege
log, and, in any event, that Ms. Katz waived the Privileges as a result of statements she made
during an interview with the Office of the New York Attorney General on March 15, 2021
(the “Interview”). (ECF No. 129).
When confronted with a privilege dispute, this Court’s usual practice is to a receive
privilege log from the party asserting the Privileges and conduct an in camera review of a set of
exemplars selected by the parties. See Monterey Bay Military Housing, LLC v. Ambac Assurance
Corp., No. 19 Civ. 9193 (PGG) (SLC), 2023 WL 315072, at *1 (S.D.N.Y. Jan. 19, 2023); Bellridge
Capital, LP v. EvMo, Inc., No. 21 Civ. 7091 (PGG) (SLC), 2022 WL 17490961, at *2–3 (S.D.N.Y.
Dec. 6, 2022); Flynn v. Cable News Network, Inc., No. 21 Civ. 2587 (GHW) (SLC), 2022 WL
17820854, at *1–2 (S.D.N.Y. Dec. 5, 2022); SGM Holdings LLC v. Andrews, No. 15 Civ. 8142 (PAC)
(SLC), 2022 WL 3447542, at *2 (S.D.N.Y. Aug. 17, 2022); Brook v. Simon & Ptrs, LLP, No. 17 Civ.
6435 (GBD) (SLC), 2021 WL 5919207, at *1 (S.D.N.Y. Dec. 15, 2021); Coventry Cap. US LLC v. EEA
Life Settlements Inc., No. 17 Civ. 7417 (VM) (SLC), 2021 WL 4312026, at *1 (S.D.N.Y. Sept. 22,
2021); Ciaramella v. Zucker, No. 18 Civ. 6945 (MKV) (SLC), 2021 WL 4219501, at *1 (S.D.N.Y. Sept.
16, 2021). Although Ms. Bennett complains of the burden of requiring her to prepare a privilege
log, Ms. DeRosa is correct that Ms. Bennett bears the burden to demonstrate that the Privileges
apply on a document-by-document basis and cannot satisfy that burden based on blanket or
conclusory assertions. (ECF No. 129 at 2 (quoting, inter alia, von Bulow v. von Bulow, 811 F.2d
136, 146 (2d Cir. 1987), Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 171 F. Supp.
3d 136, 147 (S.D.N.Y. 2016)). The Court has concluded that a privilege log and in camera review
of exemplar documents will assist in making the particularized determinations necessary for
resolving the Motion. See In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d
321, 323–24 (S.D.N.Y. 2003) (conducting in camera review of documents); Calvin Klein Trademark
Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000) (relying on privilege log and in camera review
of documents to resolve privilege dispute).
Accordingly, the Court orders as follows:
1. December 1, 2023, Ms. Bennett shall prepare and serve a privilege log (the “Log”)
reflecting communications (i) responsive to the Subpoenas and (ii) dated between the
date on which Ms. Bennett engaged Ms. Katz and/or KBK to represent her in
connection with the Interview and March 15, 2021.
2. By December 8, 2023, counsel for Ms. Bennett and Ms. DeRosa shall meet and confer
and select 16 exemplars (the “Exemplars”) from the Log for the Court’s in camera
3. By December 11, 2023, counsel for Ms. Bennett shall submit to the Court the Log and
the Exemplars through the Court’s file-share system, instructions for which the Court
will email to Ms. Bennett’s counsel.
New York, New York
November 14, 2023
SARAH L. CAVE
United States Magistrate Judge
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