Bounkhoun v. Barnes et al

Filing 69

DECISION AND ORDER granting in part and denying in part 60 Motion for Disclosure; granting in part and denying in part 62 Motion to Compel; granting in part and denying in part 63 Motion to Quash; granting in part and denying in part 67 Motion to Quash. Signed by Hon. Hugh B. Scott on 3/30/2020. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Chandy Bounkhoun,
Plaintiff,

Decision and Order
15-CV-631A

v.
Steven E. Barnes, Esq. et al.,
Defendants.

I.

INTRODUCTION
Plaintiff Chandy Bounkhoun suffered permanent blindness in one eye when she was struck

by a rock thrown from a lawnmower that her landlord was using. Plaintiff retained defendants
Steven E. Barnes, Esq., Ross M. Cellino, Esq., Christopher D. D’Amato, Esq., and Cellino &
Barnes, P.C. to pursue a personal injury action against the landlord. The case went to trial and
ended in a defense verdict; under the terms of a high-low agreement, plaintiff was awarded $25,000
minus costs and fees.
The above summary is not the end of the story. Plaintiff asserts that she could have
obtained a much higher settlement award if her attorneys had listened to her instructions to pursue
settlement negotiations. Instead, according to plaintiff, defendants ignored her instructions and
concealed the landlord’s insurer’s willingness to continue settlement talks, all in an effort to obtain a
trial verdict large enough to give them the fees that they wanted. Plaintiff also believes that
defendants pushed her to sign the high-low agreement for their own benefit. Plaintiff consequently
filed suit here. Now pending are four different motions from different parties and non-parties:
plaintiff’s motion to compel non-parties Hilary Banker, Esq. (“Banker”) and New York Central
Mutual Insurance Company (“NYCM”) to comply with certain subpoenas that were served on them

(Dkt. No. 60); defendants’ motion to compel plaintiff’s deposition and to amend the scheduling
order (Dkt. No. 62); NYCM’s motion to quash the subpoena that plaintiff served on it (Dkt. No.
63); and Banker’s motion to quash the subpoena that plaintiff served on her (Dkt. No. 67.)
II.

BACKGROUND

A.

General Case Overview
This diversity1 case concerns allegations that defendants undermined a settlement in

plaintiff’s personal-injury case to pursue a verdict that would bring higher attorney fees, without
keeping plaintiff informed of their decisions. On June 7, 2008, plaintiff’s landlord William Adolph
Jr. (“Adolph”) was using a lawnmower at or near plaintiff’s residence. The lawnmower threw a rock
that struck plaintiff and blinded her in one eye. A few days later, on June 11, 2008, plaintiff signed a
retainer agreement and retained defendants on a contingency basis. The last sentence of the retainer
agreement read, in all caps, “NO SETTLEMENT SHALL BE MADE WITHOUT FULL
KNOWLEDGE AND CONSENT OF BOTH ATTORNEY AND CLIENT.” (Dkt. No. 11-4 at
2.) Defendants proceeded to commence litigation in New York State Supreme Court, Erie County.
The events that led to this case began around January 27, 2012, the date of a certain pretrial
conference in state court. On that date, the state court set a trial date of July 9, 2012. Around the
same time, Adolph’s insurer, NYCM, informed defendants that it would be willing to settle the state
litigation for $100,000. (Dkt. No. 28 at 4.) Defendants informed plaintiff’s family accordingly;
defendants had to communicate with plaintiff through family because plaintiff is Laotian and does
not speak English. According to the second amended complaint—the current operative pleading—
plaintiff had no communication with defendants between January 27 and June 4, 2012. (Id. at 4.)
On June 4, 2012, plaintiff, through a family representative, allegedly informed defendants that she

1

When this case began, plaintiff was a citizen of Texas and all defendants were citizens of New York.

2

would be willing to settle her case for $150,000. (Id.) According to plaintiff, defendants responded
the next day and informed plaintiff only about the July 9, 2012 trial date. Defendants allegedly did
not tell plaintiff about NYCM’s settlement offer; did not tell NYCM about plaintiff’s settlement
offer; and did not tell plaintiff about the bad-faith letter that they would send to NYCM on June 21,
2012 demanding the full policy value of $1 million. (See id. at 4–5; Dkt. No. 60-2 at 9–11.) The
litigation proceeded to trial as scheduled. After jury selection, defendants had plaintiff sign a highlow agreement. The high-low agreement does not appear to be part of the record, but the gist of the
agreement was that plaintiff was guaranteed a payout of $25,000 even with a defense verdict, while
the insurer was guaranteed a cap of $750,000 in the event of a verdict for plaintiff. (Dkt. No. 28 at
7.) The jury returned a defense verdict, and plaintiff received the award of $25,000 minus costs,
fees, and liens, for a net payout of $7,256.30. (Dkt. No. 15 at 21.)
As asserted in the second amended complaint, plaintiff believes that defendants’ handling of
her state litigation makes sense only when seen from the perspective of self-dealing. Plaintiff has
accused defendants of conspiring “to manipulate the outcome of the plaintiff’s case in such a
manner so as to maximize their own potential return by minimizing their own risk and maximizing
the risk to the plaintiff without advising the plaintiff of their conspiratorial actions and the risks their
actions created for the plaintiff.” (Dkt. No. 28 at 5.) With respect to the high-low agreement,
plaintiff believes that defendants “conspired to secure a high-low agreement from the insurance
carrier on terms that were favorable to the carrier and very detrimental to the plaintiff so that they
could attempt to secure a larger attorneys fee by trying plaintiff’s case and limit their risk on any
outstanding litigation expenses by agreeing to a very low amount for the lower limit on the high-low
agreement.” (Id. at 7.) Plaintiff contends that another factor affecting defendants’ conduct is the way
in which their law firm uses attorneys as independent contractors despite marketing a different
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relationship. (Id. at 3.) Finally, plaintiff believes that defendants’ lack of concern for her state litigation
included a lack of concern about poor translation of her testimony at trial. (Id. at 7.)

B.

Plaintiff’s Subpoenas and the Pending Motions
As the summary above indicates, the core of plaintiff’s allegations can be described as a

discrepancy between two sets of communications: the communications that defendants ought to
have had with plaintiff and NYCM; and the communications that they actually had. To help explore
the discrepancy, plaintiff has issued two non-party subpoenas. One subpoena, served on NYCM,
seeks “(1) Any and all correspondence, notes, telephone call logs, or emails between employees of
your company and employees of Cellino & Barnes, P.C. relating to the settlement of Bounkhoun v.
Adolf file no. 2008-00571 [and] (2) the reserve sheet for said file.” (Dkt. Nos. 60-2 at 5; 63-2 at 2.)
The other subpoena—served on Banker, defense counsel in the state court case—similarly seeks
“(1) Any and all correspondence, notes, telephone call logs , electronic communications between
you, or personnel employed by your office and Christopher D’Amato, Esq. or any principal or
employee of Cellino & Barnes, P.C. relating to the settlement or negotiations of the Bounkhoun v.
Adolf action, (2) Any independent medical records or reports, [and] (3) any evaluations regarding
damages or liability.” (Dkt. No. 67-2 at 1.)
Plaintiff’s subpoenas prompted two of the four pending motions. On January 3, 2020,
NYCM filed a motion to quash under Rules 26(b)(3) and 45(d)(3). (Dkt. No. 63.) NYCM argues
that its subpoena “seeks NYCM’s evaluations of, and discussions regarding, the liability and
damages aspects of the plaintiff’s personal injury lawsuit, including the reserve set for the case. That
information clearly is not discoverable; therefore the subpoena should be quashed.” (Dkt. No. 63-1
at 4.) With respect to the reserve that NYCM might have set for the state court case, it asserts
immunity about reserve information and argues that “whether plaintiff’s former attorneys
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committed malpractice should not depend on what NYCM had set as its reserve. The reserve
information is unnecessary for the continued prosecution of the plaintiffs lawsuit. Therefore,
plaintiff does not have a substantial need for the reserve information.” (Id. at 5.) Additionally,
according to NYCM, “[i]f there were any written communications between Cellino & Barnes and
NYCM regarding a settlement, plaintiff can obtain those documents from Cellino and Barnes
through the normal discovery process. If plaintiff was unsatisfied with defendants’ responses, she
should have filed a motion to compel further responses rather than subpoenaing clearly privileged
information from NYCM.” (Dkt. No. 63-1 at 5.) On January 8, 2020, Banker filed her own motion
to quash. (Dkt. No. 67.) Banker asserts that plaintiff sought essentially the same information from
her in the state court case and had her request denied by the state court judge. (Dkt. No. 67-1 at 2.)
Banker thus believes that collateral estoppel applies to plaintiff’s renewed attempt to obtain
information from her. Banker also argues that her file from the state court case would contain
privileged correspondence between her and Adolf and
would also contain correspondence to the insurance adjuster containing my analysis
of the current litigation and my strategy for further handling. This would include
strategy with regard to experts to be obtained, witnesses to be called at trial, evidence
to be presented at trial, the appearance (good or bad) of various witnesses, opinions
regarding Plaintiffs injury and value of same, and strategy with regard to settlement
negotiations. In fact, the subpoena served by Plaintiff’s counsel specifically requests
any evaluations regarding liability or damages. This material deals directly with my
handling of this matter on behalf of my client William Adolph and therefore is
protected by attorney/client privilege. As it deals with my analysis, strategy, and
mental impressions, it constitutes attorney's work product. Any other information
contained in the file, which would be discovery exchanged through litigation, i.e., my
responses to discovery demands, pleadings, depositions transcripts, and
correspondence with Plaintiff’s counsel’s office, would be all be contained in the
Cellino and Barnes file and therefore readily accessible to Plaintiff as the Cellino and
Barnes file has already been provided.
(Id. at 5.) Through her cross-motion to compel compliance with the subpoenas (Dkt. No. 60),
plaintiff asserts that “Ms. Banker in her motion to quash never denied that she may have relevant
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factual information as to whether or not the defendants ever attempted to engage in good faith
negotiations with the insurance carrier for the defendant on the underlying case.” (Dkt. No. 60-1 at
1.) Plaintiff asserts further that she “drafted the subpoena in a manner that called for factual
information and that was devoid of any request for attorney work product or attorney-client
privileged information. The subpoena was designed to elicit non-privileged discoverable
information essential to the proof required in the plaintiff’s causes of action against the named
defendants.” (Id. at 4.) Plaintiff acknowledges that “[t]he real irony in requesting the information
called for in the two subpoenas is that your declarant does not believe, based upon a review of the
defendant’s file and my conversations with my client and her representative, that there will be any
telephone call logs, correspondence, notes and or emails between the defendants and either Ms.
Banker or NYCM other than the June 21, 2012 and June 28, 2012 letters.” (Id. at 6.) Plaintiff then
seems to backtrack somewhat from the “any and all” demands on the faces of the subpoenas:
The specific factual information the plaintiff is seeking from the non-party
witnesses is limited in time and scope. The fact of whether there were any
communications between the defendants and the non-party witnesses relating to
settlement negotiations between the time the pre-trial conference was conducted in
January 2012 and the commencement of the trial on July 9, 2012 does not involve
providing privileged or attorney work product information. Whether any such
communications took place, other than the previously referenced letters, is a vital
piece of evidence that the plaintiff’s proposed expert will rely on in formulating his
or her opinion.
(Id. at 8.) Plaintiff emphasizes that she seeks only “the amount of reserve” set by NYCM and not
any mental impressions related to it. (Id. at 8.) “The number NYCM placed as its reserve on the file
in the underlying action is just a number and which is something NYCM is required to keep in the
ordinary course of its business pursuant to government regulation. The disclosure of that amount
maintained as the reserve requires no delivery of any mental impressions, conclusions or legal

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theories regarding the underlying action.” (Dkt. No. 68-2 at 2.) At the same time, plaintiff now
places increased importance on obtaining telephone logs:
It now appears from Ms. Banker’s affidavit, See Doc. 67-1 par. 11 that Ms.
Banker now claims that she had no further discussions regarding settlement after a
May 30, 2012 pre-trial conference until “she was informed during the trial that a
high/low agreement had been reached.” If Ms. Banker had no knowledge of a
high/low agreement, said agreement had to have been made between the defendants
and an insurance carrier representative.
Ms. Banker’s affidavit regarding the high / low agreement makes it
imperative that the plaintiff secured the telephone logs of NYCM regarding its
communication with the defendants as there is nothing in the file provided by the
defendants relating to the high/low agreement. Without those logs the plaintiff
would be subject to a substantial hardship in proving certain aspects of her case.
(Id. at 3.)
There are other discovery-related issues pending as well. On January 3, 2020, defendants
filed a motion to compel plaintiff’s deposition. (Dkt. No. 62.) Both defendants’ and plaintiff’s
motions also seek to modify the schedule for pretrial discovery. The Court suspended pretrial
deadlines until the resolution of the pending motions. (Dkt. No. 61.).
III.

DISCUSSION

A. Collateral Estoppel
The Court first will examine the issue of collateral estoppel, because that issue potentially is
dispositive of plaintiff’s attempts to enforce the subpoenas. In state court, plaintiff sought an order
containing two directives: 1) a directive permitting depositions of Banker and of NYCM Senior
Casualty Examiner Christopher O’Meara (“O’Meara”); and 2) a directive requiring Banker to
produce her litigation file and O’Meara to produce his claims file—effectively the entire file that
NYCM would have for the state court case. (Dkt. No. 67-3 at 1–2.) Plaintiff sought the order
before the state court case commenced, under the pre-suit discovery provision at N.Y. CPLR
3102(c). Since CPLR 3102(c) itself contains no procedural guidance, there is some indication in
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state law that CPLR 3102(c) matters are special proceedings that operate under CPLR Article 4. See
Bumpus v. New York City Transit Auth., 883 N.Y.S.2d 99, 106 (App. Div. 2009) (“It has been
recommended that a request for pre-action disclosure be sought by means of a special proceeding
pursuant to CPLR article 4.”) (citations omitted); David D. Siegel and Patrick M. Connors, N.Y.
Practice § 352 (6th ed. and 2019 Supp.) (“Unfortunately, CPLR 3102(c) is devoid of any of the
necessary mechanics for seeking preaction disclosure. The courts have filled the gap, recommending
that the application should be made via a special proceeding.”) (available in Westlaw). Treatment of
pre-suit discovery as a special proceeding is important because, under state law, the final order that
ends a special proceeding is considered a judgment. See CPLR 411 (“The court shall direct that a
judgment be entered determining the rights of the parties to the special proceeding.”). Having a
judgment, in turn, implicates the federal statute requiring federal courts to give full faith and credit
to the “records and judicial proceedings” of state courts. See 28 U.S.C. § 1738. Here, plaintiff’s
special proceeding in state court ended with an order denying her request “in all respects.” (Dkt.
No. 67-4 at 2.) The copy of the order in the docket bears two stamps of authenticity from the state
court clerk and from the Erie County Clerk’s Office. (Id. at 1, 2.) Plaintiff has not raised any
question about the authenticity of the copy of the order that is in the docket. The Court thus
accepts the copy in the docket as a final order and judgment from state court reciting that the parties
were fully heard, that “due deliberation upon the matters” occurred (id. at 2), and that the requests
for depositions and for production of files were fully denied.
The standard for collateral estoppel is well known. “Under collateral estoppel, or issue
preclusion, the second suit is upon a different claim or cause of action. This doctrine’s fundamental
notion is that an issue of law or fact actually litigated and decided by a court of competent
jurisdiction in a prior action may not be relitigated in a subsequent suit between the same parties or
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their privies. Collateral estoppel saves parties and the courts from the waste and burden of
relitigating stale issues, and, by discouraging inconsistent results, forwards public policy favoring the
establishment of certainty in legal relations. There are exceptions to the use of collateral estoppel.
For example, a court should decline to give preclusive effect to a prior judgment if there have been
changes either in the applicable legal rules or the factual predicates essential to that prior judgment.
In addition, where pure questions of law—unmixed with any particular set of facts—are presented
to a court, the interests of finality and judicial economy may be outweighed by other substantive
policies.” United States v. Alcan Aluminum Corp., 990 F.2d 711, 718–19 (2d Cir. 1993) (internal
quotation marks and citations omitted). “Collateral estoppel generally applies if: (1) the issues in
both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and actually
decided, (3) there was a full and fair opportunity for litigation in the prior proceeding, and (4) the
issues previously litigated were necessary to support a valid and final judgment on the merits.” Lord
v. Int’l Marine Ins. Servs., 420 F. App’x 40, 41 (2d Cir. 2011) (summary order) (internal quotation
marks and citations omitted). All of the elements for collateral estoppel are present here. In the
pre-suit special proceeding, plaintiff wanted Banker to appear for a deposition and to produce her
litigation file; and wanted O’Meara to appear for a deposition and to produce his claims file. (Dkt.
No. 67-3 at 1.) Here, the subpoena served on Banker required her to appear at a specific date and
time for a deposition and to bring her entire litigation file with her. (Dkt. No. 67-2 at 1.) The
subpoena served on NYCM similarly required O’Meara—he is not mentioned by name, but he
almost certainly would have been NYCM’s representative under Rule 30(b)(6)—to appear at a
specific date and time for a deposition and to bring NYCM’s entire claims file with him. (Dkt. No.
63-2 at 2.) The parties in both proceedings are identical and litigated the issues fully in state court.
The issues in state court led to a final order and judgment, and the final order and judgment came
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about solely to address the issues about depositions and file production. Plaintiff has not pointed to
any changes in state legal rules since the final order and judgment. Plaintiff also has not
demonstrated any changes in factual circumstances. In both state court and here, plaintiff stated
explicitly that she wants depositions and file production to explore “the failure of Mr. D’Amato to
secure a settlement when a significant offer had been made and where the plaintiff was prepared to
settle for what appeared to be a very reasonable amount given the injury sustained, the amount
already offered, and the coverage available.” (Dkt. No. 67-3 at 4; see also Dkt. No. 60-1 at 4 (“The
central issue in the plaintiff’s case [here in federal court] is whether or not the defendants reasonably
attempted to negotiate a settlement on their client’s behalf or acted in a manner that was designed to
further their own interests at the expense of the plaintiff.”).) Cf. Application of Am. Tobacco Co., 880
F.2d 1520, 1527 (2d Cir. 1989) (“These [collateral estoppel] principles have been applied in federal
court to bar an attack on a subpoena, where a New York state court had previously denied a motion
to quash an identical subpoena.”); see also Temple of Lost Sheep Inc. v. Abrams, 930 F.2d 178, 183 (2d
Cir. 1991) (applying collateral estoppel from a state-court judgment to prohibit federal litigation
under 42 U.S.C. § 1983). Under these circumstances, this Court is obligated to honor the final order
and judgment from state court. Plaintiff is collaterally estopped from seeking depositions of Banker,
O’Meara, and any other Rule 30(b)(6) representative of NYCM. Plaintiff further is collaterally
estopped from obtaining Banker’s litigation file or NYCM’s claims file.

B.

Modifying the Subpoenas
Although plaintiff is collaterally estopped from the depositions and file production described

above, one more issue requires some attention. Even when courts find problems with requests in
subpoenas, they will modify the subpoenas before quashing them altogether if modifications can
correct the problems. See, e.g., Cooper v. Hill, No. 12-CV-1227S, 2016 WL 7366976, at *2 (W.D.N.Y.
10

Dec. 20, 2016); Gambino v. Payne, No. 12CV824A, 2015 WL 866811, at *2 (W.D.N.Y. Mar. 2, 2015)
(“Modification is preferred to outright quashing a subpoena.”) (citation omitted); see also, e.g., Wiwa v.
Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004) (“Generally, modification of a subpoena
is preferable to quashing it outright.”) (citations omitted); Linder v. Nat’l Sec. Agency, 94 F.3d 693, 698
(D.C. Cir. 1996) (noting that “a modification of a subpoena is generally preferred to outright
quashing”). Here, plaintiff has pointed to two narrow paths to limited discovery that would not be
subject to collateral estoppel. First, plaintiff has stated in her papers that “one of the chief
objectives of the subpoenas served on Ms. Banker and NYCM was to ascertain whether or not there
were any communications between the defendants and either Ms. Banker or NYCM between late
May 2012 and the commencement of the trial on July 9, 2012 other than the above referenced
letters.” (Dkt. No. 60-1 at 6.) The occurrence of communications from defendants to either Banker
or NYCM, in itself, would be an objective underlying fact separate from documents that would be
protected by work-product privilege. See ECDC Envtl. v. New York Marine & Gen. Ins. Co., No.
96CIV.6033(BSJ)(HBP), 1998 WL 614478, at *16 (S.D.N.Y. June 4, 1998) (“However, because the
work product privilege does not protect the facts in that document (the privilege protects
documents, not facts), the party seeking those facts may obtain them through other means of
discovery, such as through depositions and interrogatories.”); see also Hickman v. Taylor, 329 U.S. 495,
511 (1947) (“Where relevant and non-privileged facts remain hidden in an attorney’s file and where
production of those facts is essential to the preparation of one’s case, discovery may properly be
had.”). The basic occurrence of communications thus is discoverable.
Second, plaintiff has clarified that she “is not interested in the mental impressions of either
attorneys or the insurance company as to how NYCM arrived at the reserve but only the amount of
reserve.” (Id. at 8.) Case law regarding disclosure of reserve information is somewhat divided. In
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the context of bad-faith litigation between an insured and an insurance company, reserve
information is discoverable so long as it reflects ordinary business judgments and not legal advice
made in contemplation of litigation. See Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of New York, 284
F.R.D. 132, 139 (S.D.N.Y. 2012); Champion Int’l Corp. v. Liberty Mut. Ins. Co., 128 F.R.D. 608, 612
(S.D.N.Y. 1989); see also Pete Rinaldi’s Fast Foods, Inc. v. Great Am. Ins. Cos., 123 F.R.D. 198, 202
(M.D.N.C. 1988) (“An insurance company cannot reasonably argue that the entirety of its claims
files are accumulated in anticipation of litigation when it has a duty to investigate, evaluate and make
a decision with respect to claims made on it by its insured.”). That said, courts cannot overlook the
issue of relevance. “Defendant’s assessment or its underwriter’s assessment or its counsel’s
assessment of exposure to liability in this or prior cases has nothing to do with whether here there is
liability. Furthermore, to allow evidence of the amount of reserves set aside for any particular
incident would get this trial into mini-litigations over what was in the minds of the persons who set
the reserve to uncover why each particular reserve was set (which would likely have depended on
various factors besides an assessment of potential liability).” Sundance Cruises Corp. v. Am. Bureau of
Shipping, No. 87 CIV. 0819 (WK), 1992 WL 75097, at *1 (S.D.N.Y. Mar. 31, 1992), cited by Ice Cube
Bldg., LLC v. Scottsdale Ins. Co., No. 3:17-CV-00973 (KAD), 2019 WL 4643609, at *2 (D. Conn. Apr.
8, 2019) (“The issue of reserves and the setting of reserves is beyond the scope of Rule 26 in this
coverage dispute.”). If the relevance of a reserve amount can be questionable in bad-faith coverage
disputes then it becomes even more attenuated in a dispute over legal malpractice. This case is not
about bad faith by NYCM; the case is not about whether NYCM set an initial internal number that it
may or may not have modified in response to plaintiff’s settlement offer. This case is about whether
defendants conveyed plaintiff’s settlement offer at all, and whether any failure to do so rises to the

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level of legal malpractice. Consequently, even if the basic fact of the reserve number could escape
collateral estoppel, the Court finds that reserve information here is not relevant.
Accordingly, Banker’s and NYCM’s motions to quash are granted with one exception.
Within 30 days of this Decision and Order, Banker and an appropriate representative of NYCM
each will serve affidavits on plaintiff answering whether they received any communication of any
kind from defendants, between January 27 and July 9, 2012, conveying any settlement offers from
plaintiff.

C.

New Scheduling
Having addressed the principal issue of plaintiff’s subpoenas, the Court finds that any

remaining issues in the pending motions pertain to scheduling. The Court thus will set new
deadlines as follows, mindful that ongoing public-health events and the District’s General Order
Regarding Court Operations2 might hamper discovery-related logistics.
On or before May 8, 2020, the parties will respond to any discovery demands that they have
served on each other up to this point and that remain pending.
On or before July 31, 2020, all fact discovery including all depositions will conclude.
On or before August 31, 2020, the parties will identify any experts and provide written
reports as required under Rule 26(a)(2).
On or before October 30, 2020, all expert discovery will conclude.

2

Available at https://www.nywd.uscourts.gov/sites/nywd/files/Court%20Operations%
20Under%20COVID-19_signed.pdf.

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IV.

CONCLUSION
For all of the foregoing reasons, the Court adjudicates the pending motions as follows:
•

Plaintiff’s motion to compel and to amend the scheduling order (Dkt. No. 60) is denied
except to amend the schedule as stated above.

•

Defendants’ motion to compel plaintiff’s deposition and to amend the scheduling order
(Dkt. No. 62) is granted in part to set a new schedule that includes a deadline for all
depositions. The motion is denied to the extent that it seeks any other relief.

•

NYCM’s motion to quash (Dkt. No. 63) is granted with the exception of the affidavit
described above.

•

Banker’s motion to quash (Dkt. No. 67) is granted with the exception of the affidavit
described above.

SO ORDERED.

__/s Hugh B. Scott________
DATED: March 30, 2020

Hon. Hugh B. Scott
United States Magistrate Judge

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