Popat v. Levy et al

Filing 156

ORDER denying 125 Motion to Compel. Signed by Hon. H. Kenneth Schroeder Jr. on 9/24/2021. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SAURIN POPAT, M.D.,
Plaintiff,
v.

15-CV-1052W(Sr)

ELAD LEVY, MD.,
THE STATE UNIVERSITY OF NEW YORK
AT BUFFALO
UNIVERSITY AT BUFFALO SCHOOL
OF MEDICINE AND BIOSCIENCE,
UNIVERSITY AT BUFFALO
NEUROSURGERY GROUP,
UNIVERSITY AT BUFFALO
NEUROSURGERY, INC.,
and
KALEIDA HEALTH,
Defendants.

DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Elizabeth A.
Wolford, in accordance with 28 U.S.C. § 636(b), for all pretrial matters. Dkt. #17.

By letter dated July 23, 2014, defendant Elad Levy, M.D., in his capacity
as Professor and Chair of Neurosurgery at State University of New York at Buffalo
School of Medicine and Bioscience (“UB Medical School”),1 terminated plaintiff’s

1

Dr. Levy is also Chair of Neurosurgery at Kaleida Health and Chair of Neurosurgery for
University at Buffalo Neurosurgery (“UBNS”), which is part of UBMD, the single largest medical
group in Western New York, with more than 500 physicians in 18 medical specialties. Dkt. #60,
¶ 11.

voluntary faculty appointment effective August 29, 2014. 2 Dkt. #108-1, p.144. Dr. Levy
states that he terminated plaintiff from this position because of plaintiff’s attempt to
schedule a collaborative surgery when Dr. Levy would be away; because plaintiff
deviated from the agreed upon protocol during that surgery on July 22, 2014; because
plaintiff subsequently failed to contact him to discuss the surgery as Dr. Levy requested;
and because Dr. Levy had been advised that plaintiff had been aggressive with billing
staff when they raised issues regarding plaintiff’s medical coding of surgeries performed
with various UBNS surgeons. Dkt. #128-2, pp.5-6.

By letter addressed to Dr. Cain, dated July 31, 2014 and postmarked
August 13, 2014, plaintiff requested a full formal investigation of racially discriminatory
comments he alleges Dr. Levy made during surgery on July 22, 2014. Dkt. ##125-9 &
125-10. Plaintiff also complained of a series of multiple events preceding and
subsequent to this incident that clearly demonstrate abusive conduct and conduct
detrimental to patient care. Dkt. #125-9, p.1. Plaintif f complained that Dr. Levy had
terminated his appointment3 within the Department of Neurosurgery at UB Medical
School without any discussion and sought to appeal that determination. Dkt. #125-9.

By letter dated August 19, 2014, Dr. Cain advised plaintiff that:
The University at Buffalo takes allegations of discrimination
very seriously and has a process in place for investigating
such matters. Therefore in accordance with the UB Policy

2

Dr. Levy had recommended plaintiff’s appointment to the position of Voluntary Clinical
Associate Professor in the Department of Neurosurgery at UB Medical School by letter
addressed to Michael E. Cain, M.D., Dean of the UB Medical School (“Dr. Cain”), dated
December 11, 2013. Dkt. #110-4. Plaintiff remains a Clinical Assistant Professor of
Otolaryngology at UB Medical School, a position he was appointed to in 2009. Dkt. #107, p.103.
3

Plaintiff stated that although he had not been formally notified that he had received this
appointment, he was concerned that withdrawal of the appointment might have detrimental
professional consequences within the entire SUNY system and other academic, licensing,
medical malpractice and clinical privileging entities. Dkt. #125-9, p.2.

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against Discrimination and Harassment, I am referring your
letter and this matter to the University’s Office of Equity,
Diversity and Inclusion for investigation as appropriate. I am
also referring your letter to [UBNS] for participation in an
investigation of this matter as appropriate. I will ask that a
review of the circumstances regarding your University
appointment be included in any such investigation.
Dkt. #125-10.

Kimberly Drozdowski, Director of Human Resources at UBNS, avers that
plaintiff’s complaint was forwarded to Dr. Levy and CEO Mary Ann Kedron by Dr. Cain
in mid-August 2014. Dkt. #129-1, ¶ 4. Ms. Drozdowski avers that they were advised by
Dr. Cain that the matter had been referred to Sharon Nolan-Weiss, Director of the
Office of Equity, Diversity and Inclusion at the State University of New York at Buffalo
(SUNY Buffalo”), for a full investigation. Dkt. #129-1, ¶ 5. Ms. Drozdowski was advised
that, “due to the nature of the allegations and in anticipation of litigation, Dr. Levy and
UBNS had retained Colleen Mattrey as counsel to provide legal advice.” Dkt. #129-1,
¶ 6. Ms. Drozdowski affirms that “[t]he limited communication I had with Ms. Mattrey
during that time period and up to the present has been strictly for the purpose of
obtaining her legal advice.” Dkt. #129-1, ¶ 8.

By letter dated August 25, 2014, 4 Ms. Kedron advised Dr. Cain that UBNS
had completed its internal investigation, which included individual interviews with all of
the residents and attendings (except plaintiff), who were in the operating room on July
22, 2014, and had determined there was no merit to plaintiff’s allegation. Dkt. #131-1.
The letter identified the individuals interviewed and stated that their recollection was
consistent with Dr. Levy’s account. Dkt. #131-1, p.1.
4

Plaintiff’s counsel declares that this document was produced in discovery by the SUNY
and Kaleida defendants, but not by Dr. Levy or UBNS. Dkt. #131, ¶¶ 3-4. A draft of the letter
dated August 25, 2014 which was not on letterhead and contained a signature line for Ms.
Drozdowski, but no signature, was produced in discovery by UBNS. Dkt. #129-2, p.19 & Dkt.
#131, ¶ 4.

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By letter dated March 25, 2015, Ms. Nolan-W eiss explained to plaintiff
that because plaintiff’s claims involved both SUNY Buffalo and UBNS, the investigation
was conducted jointly by UB’s Office of Equity, Diversity and Inclusion and UB
Associates, Inc.’s Compliance Officer, Lawrence DiGiulio, Esq. Dkt. #110-5 & 110-10.
The letter advised plaintiff that the investigation included interviews with plaintiff, Dr.
Levy and multiple third-party witnesses, as well as a review of correspondence and
relevant policies and procedures. Dkt. #110-10. SUNY Buffalo concluded that the
evidence did not support a finding of a hostile environment, but recommended that UB
Medical School take appropriate remedial action regarding comments that
inappropriately reference race, national origin or other protected factors. Dkt. #110-1-,
p.2. SUNY Buffalo did not find sufficient evidence to establish that the termination of
plaintiff’s volunteer appointment in the Neurosurgery Department violated SUNY
Buffalo’s discrimination and harassment policy. Dkt. #110-10, p.2. Finally, SUNY
Buffalo determined that there was insufficient evidence to demonstrate that a meeting
on August 24, 2104 constituted harassment or intimidation in retaliation for plaintiff’s
complaint rather than an attempt to reach a mutual resolution. Dkt. #110-10, p.2.
Finally, SUNY Buffalo advised plaintiff that there was insufficient evidence to support
plaintiff’s allegation that the absence of assigned residents to a subsequent surgery
performed by plaintiff was in retaliation for plaintiff’s complaint of discrimination and that
his complaints regarding a lack of referrals for subsequent surgeries with UBNS was
outside the purview of SUNY Buffalo as it involved private medical practice. Dkt. #11010, p.3.

Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), on May 11, 2015 (Dkt. #72-1, ¶ 3), and received a
Notice of Right to Sue dated September 16, 2015. Dkt. #1, p.17. Plaintiff commenced
this action on December 15, 2015. Dkt. #1. Plaintiff’s second amended complaint
alleges that Dr. Levy terminated plaintiff in retaliation for his complaints of a hostile work
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environment and discrimination based upon race and national origin and that Dr. Levy
subsequently exerted pressure upon other doctors to cease patient ref errals to plaintiff
and interfere with plaintiff’s employment relationship with Delaware Medical Group. Dkt.
#60. Dr. Levy and UBNS assert a counterclaim for slander. Dkt. #92.

By Decision and Order entered November 3, 2020, in response to
plaintiff’s motion to compel (Dkt. #102), this Court directed Dr. Levy to provide a
privilege log for any documents in his possession being withheld on the grounds of
privilege which would otherwise be responsive to document demand No. 9 seeking all
statements, reports, and any other communications between Dr. Levy and any other
person concerning the events of July 22, 2014. Dkt. #114, pp.13-14. Judge Wolford
affirmed the Decision and Order on November 30, 2020. Dkt. #119.

On December 23, 2020, Colleen Mattrey, attorney for Dr. Levy and UBNS,
produced an amended privilege log and advised plaintiff “that all emails referenced in
our privilege log which bear the subject ‘Popat’ are exchanges between myself and my
clients regarding the complaint filed with Dean Cain as well as litigation regarding your
client’s allegations.” Dkt. #120-3, pp.4-5.

By letter dated December 30, 2020, plaintiff complained that the privilege
log was deficient because it failed to provide a sufficiently specific description of the
documents withheld, making it impossible for plaintiff to assess whether any of the
documents were improperly withheld or whether the privilege may have been waived.
Dkt. #120, p.1. Upon review of the exchange between the parties regarding the
privilege log description, the Court issued a Text Order determining that it was satisfied
that the explanation that all email referenced in the privilege log are exchanges
between counsel and her clients regarding the complaint filed with Dean Cain as well as
litigation regarding plaintiff’s allegation was sufficient to support the claim of attorney-5-

client privilege. Dkt. #121. The Court directed the parties to proceed with depositions
expeditiously. Dkt. #121.

Notwithstanding this directive, on January 26, 2021, plaintiff’s counsel
advised defense counsel that he had “concluded that som e or all of the documents
listed on the amended privilege log are not privileged, or that any applicable privilege
has been waived.” Dkt. #125-7, p.1. Plaintiff’s counsel claimed entitlement to discovery
of all communications – including attorney-client communications – regarding
defendants’ internal investigation of plaintiff’s allegations. Dkt. #125-7, p.1. Plaintiff
argues that because the investigation was conducted pursuant to UB’s regular process
and policy, it should not be protected by attorney-client privilege. Dkr. #125-7, p.2. In
any event, plaintiff argues that defendants’ assertion of affirmative defenses waived any
privilege. Dkt. #125-7, pp.2-3.

By email dated January 26, 2021, defense counsel responded:
Magistrate Schroeder has already determined that the
documents were properly placed on a privilege log and were
communications between myself and my clients regarding
impending litigation, and not in the “ordinary course of
business.” We turned over both our investigation letter to the
Dean as well as the letter received from Dean Cain re your
client[‘]s complaint. Emails between myself and a member of
management at UBNS who you have sued are not
discoverable - period. There is no waiver. We will not be
producing any emails between a client and attorney in
anticipation of litigation. If you feel the need to bring a
motion I invite you to do so.
Dkt. #125-8.

Currently before the Court is plaintiff’s motion to compel disclosure of
documents referenced in the privilege log on the grounds that those documents are not
privileged in the first place or that defendants have asserted affirmative defenses which
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waive the privilege. Dkt. #125-11, pp.6-7. Specifically, plaintiff argues that documents
related to the internal investigation are neither privileged nor protected to the extent that
the communications involve business rather than legal advice or were prepared in the
ordinary course of business. Dkt. #125-11, pp.7 & 9. Plaintiff seeks at least the email
dated August 22, 2014 attaching a draft letter to Dr. Cain regarding plaintiff’s complaint;
the email dated August 25, 2014 attaching a revised letter to Dr. Cain; and another
email dated Agusut 25, 2014 between Ms. Mattrey and Ms. Drozdowski, but notes that
defense counsel indicates that all emails referenced on the privilege log pertain to, inter
alia, the complaint filed with Dean Cain, thereby suggesting that they are related to the
internal investigation of plaintiff’s complaint and discoverable. Dkt. #125-11, p.11. Even
if the emails are privileged, plaintiff argues that the privilege was waived by defendants’
affirmative defenses which place documents ad communications relating to any internal
investigation at issue. Dkt. #125-11, pp.12-16.

Defendants argue that the documents sought are protected by attorneyclient privilege because they are communications between Dr. Levy, a representative of
UBNS and trial counsel which occurred after plaintiff was terminated from his position at
UB Medical School and after plaintiff submitted a complaint of discrimination against
them for the purpose of obtaining legal advice. Dkt. #130. pp.2-5. Counsel declares that
defendants “consulted with counsel after they terminated Plaintiff from his position and
they were notified he was proceeding with Title VI claims against them.” Dkt. #129, ¶ 4.
Counsel further declares that defendants are not relying on the findings of an
investigation or the advice of counsel to justify their termination of plaintiff, but have
consistently explained that plaintiff was terminated prior to any complaint by plaintiff due
to his conduct during and following a medical operation. Dkt. #129, ¶¶ 21-22. More
specifically, defendants argue that they did not assert a single affirmative defense that
indicates they relied upon an investigation or advice by outside counsel in making the
decision to terminate plaintiff. Dkt. #130, pp.5-6. To the contrary, defendants argue that
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their affirmative defenses are based upon the premise that plaintiff was terminated from
his position with UBNS because of his performance during surgery on July 24, 2014, as
particularized in defendants’ response to plaintiff’s first set of interrogatories. Dkt. #130,
p.6.

Plaintiff replies that disclosure of documents related to defendants’
internal investigation is appropriate because defendants’ affirmative defenses are
based upon the premise that defendants acted in good faith and had legitimate,
nondiscriminatory reasons for terminating plaintiff’s neurosurgery appointment. Dkt.
#131-4, pp.3-4. Plaintiff further replies that defendants were not asked to particularize
their sixth affirmative defense, which clearly raises a Faragher/Ellerth5 defense, thereby
waiving privilege. Dkt. #131-4, pp.4-6.

“The attorney-client privilege protects confidential communications
between client and counsel made for the purpose of obtaining or providing legal
assistance.” In re County of Erie, 473 F.3d 413, 418 (2d Cir. 2007). “[T]he privilege
exists to protect not only the giving of professional advice to those who can act on it but
also the giving of information to the lawyer to enable him to give sound and informed
advice.” Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). “A party invoking the
attorney-client privilege must show (1) a communication between client and counsel
that (2) was intended to be and was in fact kept confidential, and (3) was made for the
purpose of obtaining or providing legal advice.” County of Erie, 473 F.3d at 419. In the

5

In a discrimination action where a supervisor’s harassment does not result in any
tangible employment action, the employer may escape liability by establishing, as an affirmative
defense commonly referred to as the Faragher/Ellerth defense, that the employer exercised
reasonable care to prevent and correct any harassing behavior and that the plaintiff
unreasonably failed to take advantage of the preventive or corrective opportunities that the
employer provided. Vance v. Ball State Univ., 570 U.S. 421, 424 (2013);See Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765
(1998).

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context of an internal investigation, the provision of legal advice need not be the sole
purpose of the communication, rather, “[t]he party invoking the attorney-client privilege
need only show that the provision of legal advice was a ‘primary purpose’ of the
investigation and of the communications as to which the privilege is claimed.” United
States v. Mount Sinai Hosp., 185 F. Supp.3d 383, 389-390 (S.D.N.Y. 2016). The
burden is on the party asserting the attorney-client privilege to establish each element
of this three-part standard. Koumoulis v. Independent Fin. Mktg. Grp., Inc., 295 F.R.D.
28, 38 (E.D.N.Y. 2013), aff’d 29 F. Supp.3d 142 (E.D.N.Y. 2014).

In the instance case, all of the communications set forth on the privilege
log are between outside legal counsel6 and Dr. Levy, Ms. Drozdowski and/or UBNS
CEO Michael Cournyea. Dkt. #120-3, p.4. Thus, this is not a case where there is
concern with in-house legal counsel fulfilling a dual role of legal advisor and business
consultant. See Barbini v. First Niagara Bank, N.A., 331 F.R.D. 454, 459-460 (S.D.N.Y.
2019) (acknowledging stricter standard for determining whether to protect confidential
information through the attorney-client privilege with in-house legal counsel because
they are not as independent as outside counsel). Nor is this a case of counsel
attempting to protect investigatory documents created in the ordinary course of
business rather than in anticipation of litigation. See One Beacon Ins. Co. v. Forman
Int’l, Ltd., No. 04 Civ. 2271, 2006 WL 3771010, at *5 (S.D.N.Y. Dec. 15, 2006)
(“Investigatory reports and materials are not protected by the attorney-client privilege or
the work-product doctrine merely because they are provided to, or prepared by,
counsel.”). Defendants do not assert the attorney-work product doctrine on their
privilege log and the letter to Dr. Cain, as well as a draft of that letter, which is the
subject of emails dated August 22, 2014 and August 25, 2014. Dkt. #120-3, pp.1 & 4.
Both have both been disclosed during the course of discovery. Dkt. #120-3, pp.1 & 4.
6

In addition to Ms. Mattrey, three emails included on the privilege log reference attorney
Amy Habib Rittling, who initially appeared in this action on behalf of Dr. Levy and UBNS.

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There is also no factual basis to suggest that outside legal counsel was
consulted in a capacity other than as a lawyer providing legal advice. Counsel declares
that she was retained after plaintiff was terminated from his position and her clients
were notified that plaintiff was asserting claims of racial discrimination against them.
Dkt. #129, ¶ 4. UBNS’ Director of Human Resources, Kimberly Drozdowski, affirms that
Ms. Mattrey was retained as counsel to provide legal advice due to the nature of the
allegations raised by plaintiff and in anticipation of litigation. Dkt. #129-1, ¶ 6. The first
two email communications, which are between Ms. Mattrey and Dr. Levy, are dated
after plaintiff mailed his letter to Dr. Cain at UB Medical School complaining of racial
harassment following Dr. Levy’s termination of plaintiff’s appointment as Voluntary
Clinical Associate Professor in the Department of Neurosurgery at UB Medical School.
Dkt. #120-3, p.4. Moreover, Ms. Drozdowski affirms that the limited communication she
had with Ms. Mattrey has been strictly for the purpose of obtaining legal advice. Dkt.
#129-1, ¶ 8. This is sufficient to establish that the attorney-client privilege applies to the
email communications referenced on Ms. Mattrey’s privilege log. See O’Gorman v.
Kitchen, 20-CV-1404, 2021 WL 1292907 at *3 (S.D.N.Y. April 7, 2021) (attorney-client
privilege applied where outside legal counsel was retained after the employee was
terminated and declared that she was retained to provide legal advice); Cf. Koumoulis,
295 F.R.D. at 44-46 (attorney-client privilege did not apply where outside counsel acted
as an adjunct member of defendants’ human resources team addressing employee’s
internal complaints and issues relating to employee’s job performance prior to
employee’s termination).

The attorney-client privilege may be waived when the party holding the
privilege asserts a claim that in fairness requires examination of protected
communications. In re Grand Jury Proceedings, 219 F.3d 175, 182 (2d Cir. 2000). “[A]
party cannot partially disclose privileged communications or affirmatively rely on
privileged communications to support its claim or defense and then shield the
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underlying communications from scrutiny by the opposing party.” Id. (internal quotation
omitted). For example, a party who asserts an advice of counsel defense waives the
privilege with respect to such advice. Id. at 182-183. Similarly, when an employer puts
the reasonableness of an internal investigation of allegations of discrimination at issue
by asserting that the employer exercised reasonable care to prevent and correct any
harassing behavior and that the plaintiff unreasonably failed to take advantage of the
preventive or corrective opportunities that the employer provided, the employer waives
any privilege that might otherwise apply to documents concerning that investigation.
See Robinson v. Vinyard Vines, LLC, 15 Civ. 4972, 2016 WL 845283, at *4 (S.D.N.Y.
March 4, 2016); Koumoulis, 295 F.R.D. at 41.

Defendants’ Second Amended Complaint clearly asserts a
Faragher/Ellerth defense. Dkt. #94, ¶ 115. However, defendants deny any intent to rely
upon their investigation of plaintiff’s allegations or any advice provided by their attorney
as a basis for Dr. Levy’s decision to terminate plaintiff from his position at UB Medical
School. Dkt. #130, pp.6-7. Defense counsel declares that defendants have not
indicated that they relied on the findings of an investigation or the advice of counsel and
that “their affirmative defense in this action is that Plaintiff was terminated due to his
conduct during and following a medical operation.” Dkt. #129, ¶¶ 21-22. In reliance
upon this representation, the Court finds that defendants have not waived any privilege
as to any documents pertaining to that investigation. See Robinson, 2016 WL 845283,
at *5 (relying on representation that defendants were not relying on the reasonableness
of an investigation where plaintiff did not complain of harassment until after she
resigned).

CONCLUSION
For the reasons set forth above, plaintiff’s motion (Dkt. #125), to compel is
denied.
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The remaining discovery issues will be addressed separately, at which
time an amended scheduling order will be issued.

SO ORDERED.

DATED:

Buffalo, New York
September 24, 2021
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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