Murtha v. New York State Gaming Commission et al

Filing 48

MEMORANDUM OPINION AND ORDER. Plaintiff's request that the Court overrule Magistrate Judge Smith's Order is DENIED. SO ORDERED. (Signed by Judge Philip M. Halpern on 9/9/20) (yv)

Case 7:17-cv-10040-PMH-LMS Document 48 Filed 09/09/20 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JAMES MURTHA,
Plaintiff,

MEMORANDUM
OPINION AND ORDER

v.
NEW YORK STATE GAMING COMMISSION,
BRIAN BARRY, STEPHANIE WOLF, and
THOMAS KOTARSKI,

17-CV-10040 (PMH)

Defendants.
--------------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
On July 14, 2020, Magistrate Judge Lisa Margaret Smith held a status conference
during which discovery disputes between the parties were resolved on the record and
subject to an oral ruling (the “Order”). (See July 14, 2020 Min. Entry). On July 28, 2020,
Plaintiff filed an Objection to Judge Smith’s Order pursuant to Fed. R. Civ. P. 72. (Doc.
43). Specifically, Plaintiff challenges Judge Smith’s determination that Defendant need not
produce certain partially redacted emails1 in unredacted form. (Doc. 43-5, “Pl. Br.” at 2).
Additionally, Plaintiff asks the Court to review in camera other partially redacted emails
that were not subject to Judge Smith’s Order and have not yet been reviewed by Judge
Smith because allegedly “the issue among all emails and partial redactions is the same.”
(Id. at 3).
On August 11, 2020, Defendants filed their response to Plaintiff’s Objection. (Doc.
46). For the reasons set forth below, the Court upholds and affirms Judge Smith’s Order.

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According to the Transcript of the July 14 conference, Judge Smith ruled on the propriety of five
redactions. (Doc. 43-3, “Tr.” at 2:20–4:2). Judge Smith sustained three redactions and overruled
two others. Judge Smith directed Defendant to produce the documents containing the two overruled
redactions in unredacted form. (Id. at 4:3–4).

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STANDARD OF REVIEW
Magistrate Judge Smith’s decision on the parties’ discovery dispute was nondispositive. See U2 Home Entm't, Inc. v. Hong Wei Int'l Trading Inc., No. 04-CV-6189,
2007 WL 2327068, at *1 (S.D.N.Y. Aug. 13, 2007) (“Discovery matters are generally
considered non-dispositive of litigation.”). Fed. R. Civ. P. 72 permits a party to file
objections to a non-dispositive decision of a magistrate judge within 14 days of the
magistrate judge’s order. Fed. R. Civ. P. 72(a). “The district judge in the case must consider
timely objections and modify or set aside any part of the order that is clearly erroneous or
is contrary to law.” Id. “An order is clearly erroneous only when the reviewing court on
the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Rivera v. Hudson Valley Hosp. Grp., Inc., No. 17-CV-5636, 2019 WL
3955539, at *2 (S.D.N.Y. Aug. 22, 2019) (quoting Khaldei v. Kaspiev, 961 F. Supp. 2d
572, 575 (S.D.N.Y. 2013)). A decision is “contrary to law if it fails to apply or misapplies
relevant statutes, case law or rules of procedure.” Id. (quoting Khaldei, 961 F. Supp. 2d at
575). A magistrate judge’s “rulings on discovery matters are entitled to substantial
deference,” and, therefore, “[t]he party seeking to overturn a magistrate judge's decision
. . . carries a heavy burden.” U2 Home Entm’t, Inc., 2007 WL 2327068, at *1.
ANALYSIS
Plaintiff objects to the portion of Judge Smith’s Order which found that partial
redactions of documents was proper and asks the Court to order, pursuant to Fed. R. Evid.
502, that Defendant produce the entirety of the redacted emails in unredacted form.
Plaintiff argues that Defendants’ production of the emails with partial redactions resulted

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in a waiver of any privilege asserted as to the entirety of the partially redacted documents.
(Pl. Br. at 4–5).
As an initial matter, the Court will not consider the propriety of Defendants’
redactions on any documents that were not subject to Judge Smith’s Order. On December
17, 2019, this case was referred to the magistrate judge for all pre-trial matters including
discovery. (Doc. 36). It is not appropriate or proper for the Court to resolve any discovery
dispute between the parties that has not yet been subject to a decision by the magistrate
judge. See Rodriguez v. Pataki, 293 F. Supp. 2d 313, 315 (S.D.N.Y. 2003) (denying portion
of Rule 72 objections in which the parties requested rulings on issues not subject to the
magistrate judge’s order because “[t]he Court has referred all discovery disputes in this
case to [the magistrate judge] and he is in the best position to review them in the first
instance.”). Thus, the Court denies Plaintiff’s request to review in camera any documents
not subject to Judge Smith’s Order.
As to Judge Smith’s determination regarding the propriety of partial redactions that
were subject to the Order, the Court finds that the Order was neither clearly erroneous nor
contrary to the law. Thus, Plaintiff’s Rule 72 application is denied.
Plaintiff argues that Defendants' production of partially redacted documents
“constitutes a waiver of the attorney-client privilege as to those documents.” (Pl. Br. at 4).
Plaintiff is incorrect.
It is possible—indeed, common—that a document will contain some information
protected by a privilege and some information that is not. In such a situation, production
of the document with partial redactions is proper. The production of a partially redacted
document does not effectuate a privilege waiver over the entire document. Shinnecock

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Indian Nation v. Kempthorne, 652 F. Supp. 2d 345, 363 (E.D.N.Y. 2009) (“[T]he
production of a document in redacted form does not automatically waive the protection as
to its whole or to related documents.”).
A privilege may be deemed waived when privileged information is voluntarily
disclosed. Pearlstein v. BlackBerry Ltd., No. 13-CV-07060, 2019 WL 1259382, at *6
(S.D.N.Y. Mar. 19, 2019) (finding privilege may be waived when “the holder of the
privilege voluntarily discloses or consents to disclosure of any significant part of the matter
or communication over which the privilege is claimed.”). Indeed, when “there has been a
selective disclosure of attorney-client communications in the litigation, courts typically
find the party has waived privilege as to all documents pertaining to the subject disclosed.”
Id. (citing In re Symbol Techs., Inc. Sec. Litig., No. 05-CV-3923, 2017 WL 1233842, at
*16–18 (E.D.N.Y. Mar. 31, 2017)). Here, Plaintiff does not argue that there has been a
disclosure of any attorney-client protected information. Rather, Plaintiff argues that
production of non-privileged portions of emails waives protection over the privileged
portions of the email. Not so. See Shinnecock Indian Nation, 652 F. Supp. 2d at 363.
Plaintiff’s premise is flawed. Plaintiff cites to no legal authority for such a rule and the
Court is unaware of any such rule.
Thus, Plaintiff has failed to meet the stringent review standard of Fed. R. Civ. P.
72(a). Judge Smith’s decision that Defendants need not produce documents in unredacted
form which contained proper partial redactions based upon the attorney-client privilege is
not clearly erroneous or contrary to the law. Accordingly, the Court affirms and upholds
Judge Smith’s Order.

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CONCLUSION
Plaintiff’s request that the Court overrule Magistrate Judge Smith’s Order is
DENIED.
SO ORDERED:
Dated: New York, New York
September 9, 2020
________________________
Philip M. Halpern
United States District Judge

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