Hafizov v. BDO USA, LLP et al

Filing 141

ORDER terminating #128 Motion for Reconsideration re #128 MOTION for Reconsideration re; #125 Order on Motion for Discovery, filed by Matthew Dyment, Janet Bernier, BDO USA, LLP, #132 MOTION for Reconsideration re; #125 Order on Motion for Discovery, filed by BDO USA, LLP, #133 LETTER MOTION for Discovery Joinder in #128 Motion for Reconsideration addressed to Magistrate Judge Robert W. Lehrburger from Patrick J. Boyd dated October 30, 2023. filed by BDO USA, LLP ; terminating #132 Motion for Reconsideration re #128 MOTION for Reconsideration re; #125 Order on Motion for Discovery, filed by Matthew Dyment, Janet Bernier, BDO USA, LLP, #132 MOTION for Reconsideration re; #125 Order on Motion for Discovery, filed by BDO USA, LLP, #133 LETTER MOTION for Discovery Joinder in #128 Motion for Reconsideration addressed to Magistrate Judge Robert W. Lehrburger from Patrick J. Boyd dated October 30, 2023 filed by BDO USA, LLP ; terminating #133 Motion for Discovery. This order resolves Defendants' motions at Dkts. 128, 132, and 133 for reconsideration of this Court's October 16, 2023 order at Dkt. 125 quashing subpoenas to former and current employers of non-party Sweeney. With one exception, Defendants do not raise any new arguments, law, or facts that were not or could not have been presented earlier and thus do not provide a basis for reconsideration. The exception is that the Court agrees that there is a seeming inconsistency with respect to the statement that "the parties and the Court have an interest in not expending resources on material, such as the documents sought, that would be off limits even if Sweeney were the Plaintiff" (Dkt. 125) and this Court's earlier order permitting limited discovery of information from Plaintiff's former employers. If Sweeney were Plaintiff, limited discovery from his former employers would not necessarily be off limits. Accordingly, the categorial statement to the contrary in Dkt. 125 is withdrawn. Nonetheless, Sweeney is not the Plaintiff, and the discovery sought from former employers with respect to Sweeney as a non-party, as things stand, is not proportional to the needs of the litigation, and the potential relevance to Sweeney's credibility is outweighed by the prejudice, recognized by courts, that may ensue from the mere act of seeking discovery from former employers. The order to quash thus stands but with one modification: The decision is without prejudice to a later application following Sweeney's deposition in the event that his testimony materially alters the balance of factors. To be clear, Defendants may ask Sweeney questions about the issues raised by Defendants, including Sweeney's employment at Ryan LLC and alleged solicitation of clients and adherence to his agreements with BDO. The Clerk of Court is respectfully directed to terminate the motions at Dkts. 128, 132, and 133. SO ORDERED. Copies transmitted this date to all counsel of record. (Signed by Magistrate Judge Robert W. Lehrburger on 11/14/2023) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RINAT HAFIZOV,
:
:
Plaintiff,
:
:
- against :
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BDO USA, LLP, et al,
:
:
Defendants. :
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11/14/2023
22-CV-8853 (JPC) (RWL)
ORDER

ROBERT W. LEHRBURGER, United States Magistrate Judge.
This order resolves Defendants’ motions at Dkts. 128, 132, and 133 for
reconsideration of this Court’s October 16, 2023 order at Dkt. 125 quashing subpoenas
to former and current employers of non-party Sweeney. With one exception, Defendants
do not raise any new arguments, law, or facts that were not or could not have been
presented earlier and thus do not provide a basis for reconsideration. The exception is
that the Court agrees that there is a seeming inconsistency with respect to the statement
that “the parties and the Court have an interest in not expending resources on material,
such as the documents sought, that would be off limits even if Sweeney were the Plaintiff”
(Dkt. 125) and this Court’s earlier order permitting limited discovery of information from
Plaintiff's former employers. If Sweeney were Plaintiff, limited discovery from his former
employers would not necessarily be off limits. Accordingly, the categorial statement to
the contrary in Dkt. 125 is withdrawn.
Nonetheless, Sweeney is not the Plaintiff, and the discovery sought from former
employers with respect to Sweeney as a non-party, as things stand, is not proportional to
the needs of the litigation, and the potential relevance to Sweeney’s credibility is
outweighed by the prejudice, recognized by courts, that may ensue from the mere act of
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seeking discovery from former employers. The order to quash thus stands but with one
modification:

The decision is without prejudice to a later application following

Sweeney’s deposition in the event that his testimony materially alters the balance of
factors. To be clear, Defendants may ask Sweeney questions about the issues raised by
Defendants, including Sweeney’s employment at Ryan LLC and alleged solicitation of
clients and adherence to his agreements with BDO.
The Clerk of Court is respectfully directed to terminate the motions at Dkts. 128,
132, and 133.

SO ORDERED.

_________________________________
ROBERT W. LEHRBURGER
UNITED STATES MAGISTRATE JUDGE
Dated: November 14, 2023
New York, New York
Copies transmitted this date to all counsel of record.

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