Buksh et al v. Dr. William Sarchino DPM Foot and Ankle Surgeon et al

Filing 123

OPINION AND ORDER granting 105 Motion to Amend 36 Amended Complaint. Signed by Judge William K. Sessions III on 6/4/2024. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Shazad Buksh, Krishna
Gathani, Gon Saman,
Plaintiffs,
v.
Dr. William Sarchino DPM
Foot and Ankle Surgeon,
William Sarchino,
Southwestern Vermont Medical
Center, Southwestern Vermont
Health Care,
Defendants.

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Case No. 2:21-cv-190

OPINION AND ORDER
Pending before the Court is a motion for leave to amend the
Amended Complaint, filed by Plaintiffs Shazad Buksh and Krishna
Gathani.

The Second Amended Complaint would add an abuse of

process claim, alleging that Defendants Southwestern Vermont
Medical Center and Southwestern Vermont Health Care improperly
objected to certain discovery requests in a purposeful attempt
to facilitate Buksh’s federal criminal prosecution, and thus
gain an advantage in this civil action.

Defendants argue that

their discovery objections were appropriate, that Buksh’s
proposed claim involves significant speculation, and that the
alleged misconduct did not result in any harm.
For the reasons set forth below, the motion to amend is
granted.

Factual Background
Plaintiffs filed their initial Complaint in this case on
August 9, 2021, and subsequently filed an Amended Complaint.
Their claims center on allegations of discrimination and
retaliation in the workplace.

On August 31, 2022, Defendants

Southwestern Vermont Medical Center (“SVMC”) and Southwestern
Vermont Health Care (collectively “Defendants”) filed an Answer
and Counterclaim.

The Counterclaim is brought solely against

Plaintiff Buksh, alleging that while Buksh was employed at SVMC
he sent emails containing confidential patient medical records
from his SVMC email address to his personal Gmail address.
No. 45 at 23.

ECF

Those records reportedly included patient x-rays,

a Microsoft Excel document listing over 10,000 patient records,
and logs related to patients Buksh observed and treated while at
SVMC.

Id. at 24.

The Counterclaim alleges, among other things,

violation of the Vermont Computer Crimes Statute, 13 V.S.A. §§
4101-4107 (Count IV).
On May 4, 2023, Buksh served a first set of interrogatories
and request for production of documents asking, in part, whether
Defendants “or any agent thereof, reported the allegations
contained in Count IV of the [] counterclaim to any local,
county, state, or federal police or law enforcement agency.”
ECF No. 102-4 at 3.

He also asked for the names of any

agencies, officers, or investigators involved, and any documents
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exchanged with those agencies.

Id. at 4.

On July 19, 2023,

Defendants objected to Buksh’s requests as irrelevant to their
counterclaim.

ECF No. 102-5 at 3.

Notwithstanding those

objections, Defendants produced documents showing that SVMC had
reported a potential security breach to the Vermont Attorney
General’s Office.

ECF No. 102-6.

The correspondence to the

Attorney General’s Office stated that SVMC was investigating the
possible breach and “cooperating with law enforcement.”
3.

Id. at

SVMC also produced a report to the U.S. Department of Health

and Human Services.

Buksh sought no further discovery on those

issues at that time.
In an email dated October 27, 2023, Google notified Buksh
that it had “received and responded to a legal process issued by
the United States Department of Justice (DOJ) compelling the
release of information related to [his] Google account.”
No. 101-4 at 1.

ECF

The email further stated that “[a] court order

previously prohibited Google from notifying [him] of the legal
process.”

Id.

Buksh also obtained a copy of a grand jury

subpoena issued to Google.

ECF No. 101-5 at 1.

He reportedly

became aware of the Google email when he found it in his spam
folder on January 7, 2024.

ECF No. 101 at 2.

Buksh subsequently retained criminal defense attorney David
Sleigh.

On January 23, 2024, Attorney Sleigh contacted the

United States Attorney’s Office for the District of Vermont
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asking for further information about the Google subpoena.
No. 101-6 at 1.

ECF

The government’s response explained that

“[a]round the time of the subpoena, the United States and the
grand jury had opened an investigation of possible crimes
related to medical records.

Since the time of the subpoena, the

government has closed the investigation.”

Id.

The response

also stated that “[t]his information should not be interpreted
as a promise by the United States concerning potential
prosecution or investigation of any criminal conduct by your
client.”

Id.

On January 31, 2024, Buksh’s counsel emailed counsel for
SVMC stating that he had recently learned of the grand jury
investigation.

ECF No. 101-7.

Counsel requested the identity

of the person who had referred the criminal charges, as well as
all related communications.

Counsel further advised that

“[u]ntil this situation can be better understood, at a minimum
Dr. Buksh will not be answering any deposition questions on the
counterclaim.”

Id. at 3.

Buksh subsequently moved for a

protective order, asking the Court to (1) prevent deposition
questioning about the counterclaim “until we have more info
about the referral” to the federal government, and (2) bar any
party from claiming waiver of Buksh’s Fifth Amendment privilege
based on questions answered at the deposition.
3.

ECF No. 101 at

The Court denied the motion, concluding that “the proper
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procedure is for [Buksh] to attend his deposition and assert his
Fifth Amendment rights on a question-by-question basis.”

ECF

No. 109 at 10.
The motion before the Court alleges that by failing to
disclose in their discovery responses that they had reported
Buksh for federal prosecution, Defendants were acting in bad
faith in an effort to “lure” him into discussing incriminating
matters without invoking his Fifth Amendment rights.
105 at 3.

ECF No.

He further contends that “[g]iven defendants’ scheme,

it is likely that plaintiff Buksh’s deposition would have been
provided to USA to reopen the criminal case.”

Id. at 4.

“This

scheme would have provided defendants with the opportunity to
leverage this case through the intimidation of a plaintiff who
by virtue of his ethnicity and membership in protected classes
was particularly vulnerable to heavy-handed criminal
prosecution.”

Id. at 6.

With respect to damages, Buksh claims

that he experienced anxiety after discovering the fact of a
grand jury investigation and Defendants’ possible scheme, and
economic harm “by having, for example, to hire a criminal
defense attorney.”

ECF No. 120 at 9.
Discussion

I.

Legal Standards
Pursuant to Federal Rule of Civil Procedure 15(a)(2),

“[t]he court should freely give leave [to amend] when justice so
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requires.”

The Second Circuit has held that a Rule 15(a) motion

“should be denied only for such reasons as undue delay, bad
faith, futility of the amendment, and ... prejudice to the
opposing party.”

Aetna Cas. & Sur. Co. v. Aniero Concrete Co.,

404 F.3d 566, 603 (2d Cir. 2005) (internal quotation marks
omitted).

An amendment is futile if it results in a claim that

cannot survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6).

See Mortimer Off Shore Servs., Ltd. v. Fed.

Republic of Ger., 615 F.3d 97, 99 (2d Cir. 2010) (holding that
“leave to amend would be futile” when the amended complaint
fails to “provid[e] a basis for subject matter jurisdiction”).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).

“In considering a motion to dismiss

... the court is to accept as true all facts alleged in the
complaint” and must “draw all reasonable inferences in favor of
the plaintiff.”

Kassner v. 2nd Ave. Delicatessen, Inc., 496

F.3d 229, 237 (2d Cir. 2007).

This standard requires that the

factual allegations “be enough to raise a right to relief above
the speculative level.”

Twombly, 550 U.S. at 555.

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Parties opposing a motion to amend bear the burden of
establishing that an amendment would be futile.

Blaskiewicz v.

Cty. of Suffolk, 29 F. Supp. 2d 134, 137–38 (E.D.N.Y. 1998).
II.

Leave to Amend
Buksh seeks to add a claim for abuse of process.

Under

Vermont law, a plaintiff asserting abuse of process must “plead
and prove: 1) an illegal, improper or unauthorized use of a
court process; 2) an ulterior motive or an ulterior purpose; and
3) resulting damage to the plaintiff.
separate and distinct.”
(1988).

These elements are

Jacobsen v. Garzo, 149 Vt. 205, 208

The proposed claim here centers on Defendants’

interrogatory responses and their alleged failure to disclose
that, according to Buksh, they communicated with federal
prosecutors or law enforcement.

Applying Vermont’s abuse of

process standard, the first question is whether discovery
responses constitute “court process.”

Id.

Courts across the country appear to be divided on that
question, with some holding that rather than an abuse of process
claim, the more appropriate remedy is a discovery sanction.
See, e.g., Leighton v. Lowenberg, 2023 ME 14, ¶ 18 (holding that
the “refusal to properly respond to [the opposing party’s]
discovery requests — although sanctionable — is not
actionable”); Watters v. Dinn, 633 N.E.2d 280, 289 (Ind. Ct.
App. 1994) (noting that the “normal recourse against a party who
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abuses the discovery process is to seek sanctions in the trial
court,” and that while a party’s failure to comply with the
trial rules may be sanctionable, it does not in itself
constitute a tortious abuse of process).

At least two federal

circuit courts, however, have listed discovery violations as a
basis for alleging abuse of process.

See Gen. Refractories Co.

v. Fireman’s Fund Ins. Co., 337 F.3d 297, 311 (3d Cir. 2003)
(reversing dismissal of abuse of process claim where counsel
“knowingly made bogus claims of privilege in response to
discovery requests, hid documents, and made misrepresentations
to opposing counsel and the court”); Simon v. Navon, 71 F.3d 9,
15 (1st Cir. 1995) (“Typical abuse of process cases involve
misuse of such procedures as discovery.”).

The Court will

follow these latter authorities and hold that, when supported by
the other elements of an abuse of process claim, improper
conduct in discovery can subject a party to such a claim. 1
To present a non-frivolous claim, Buksh must also plausibly
allege an ulterior motive or purpose.

Jacobsen, 149 Vt. at 208.

The allegation is that Defendants withheld certain discovery in
order to increase the likelihood of Buksh’s federal prosecution.
Defendants claim support from Long v. Parry, in which this
Court merely noted that “Dr. Long has failed to establish that a
breach of the civil discovery rules alone qualifies as an
improper use of court process.” No. 2:12-CV-81, 2016 WL 814861,
at *24 (D. Vt. Feb. 29, 2016), aff’d, 679 F. App’x 60 (2d Cir.
2017).
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Although Buksh was aware for many months that he might be
prosecuted for a state law misdemeanor under Vermont’s Computer
Crimes Statute, he asserts that he viewed the likelihood of
prosecution as “remote.”

ECF No. 105 at 3.

He also claims

that, without any notice of the federal prosecution prior to his
deposition, he likely would have testified without asserting a
Fifth Amendment privilege.

Such testimony, he claims, could

have been used in a criminal prosecution, and would also have
provided Defendants new leverage in this civil case.
Defendants argue that Buksh’s claim is highly speculative
and therefore fails to present a plausible claim.

Specifically,

they argue that the allegations assume (1) a scheme to “lure”
Buksh into giving incriminating testimony, (2) that the U.S.
Attorney would then re-open the criminal investigation, and (3)
that Buksh would ultimately be prosecuted for federal crimes,
including felonies.

Buksh counters that the report to federal

law enforcement, and the failure to disclose such report,
involves no speculation.
As with a motion to dismiss, a court considering a motion
to amend a complaint must accept the facts alleged as true and
make all reasonable inferences in favor of the party seeking to
amend.

Gallegos v. Brandeis Sch., 189 F.R.D. 256, 258 (E.D.N.Y.

1999).

Whether the facts alleged here allow for an inference of

a nefarious scheme is a close question.
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The Court previously

determined that Defendants’ objection to Buksh’s discovery
request was justified, as the reports to government officials
had little to do with claims that Buksh himself had wrongfully
exposed patient data.

Nonetheless, it is reasonable to infer

that Defendants, based upon their own alleged actions, knew of
the potential for a federal felony prosecution and that Buksh
was at risk of waiving his Fifth Amendment rights.

Whether

Defendants hid the fact of any federal reporting in their
discovery responses, as well as in their Counterclaim
allegations, 2 in an effort to obtain an advantage in this
litigation, remains to be proven.

For present purposes however,

particularly given the liberal standard for amending pleadings,
the Court will infer an ulterior motive or purpose.
The final element for an abuse of process claim is damages.
Defendants contend that no damages arose from any alleged
discovery misconduct, since the Court held that Buksh’s recourse
was to assert his Fifth Amendment privilege on a question-byThe Court notes that Defendants alleged in the Counterclaim
that “[u]nderscoring the significance of the breach and
Defendants’ concern about the exposure of confidential patient
information, SVMC reported the breach to the Vermont Attorney
General’s Office and included the breach in its annual report to
the Vermont Office of Professional Regulation.” ECF No. 45 at
24, ¶ 18. There is no mention of a report to federal
authorities. Nor was one required, unless Buksh can establish
facts to show that Defendants were deliberately withholding
certain information as part of a “scheme” to subject him to
federal criminal prosecution and thus gain an advantage in this
litigation.
2

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question basis.

Defendants also argue that Vermont law does not

allow an emotional distress claim based upon conduct in
litigation.

ECF No. 118 at 9 (citing Rainville v. Boxer Blake &

Moore PLLC, No. 2:20-cv-51, 2021 WL 949415, *10 (D. Vt. Mar. 12,
2021)).
As noted above, Buksh alleges two forms of damages:
emotional harm after learning of a federal investigation and
Defendants’ alleged scheme, and financial harm when he had to
hire a criminal defense attorney.

It is conceivable that

exposure to a federal criminal investigation could cause
emotional distress.

As to whether such damages are available in

relation to an abuse of process claim, neither party has cited
any Vermont authority on point.

The Rainville case, cited by

Defendants, dealt with a claim of intentional infliction of
emotional distress for litigation-related anxiety.
949415, *10.

2021 WL

Buksh cites a host of cases from other

jurisdictions allowing mental suffering damages arising from an
abuse of process claim.

ECF No. 120 at 8 (citing cases).

In

keeping with Buksh’s citations, many jurisdictions allow damages
for emotional distress arising out of an abuse of process.

See,

e.g., Quick v. EduCap, Inc., 318 F. Supp. 3d 121, 139 (D.D.C.
2018) (citing Restatement (Second) of Torts § 670 (1977));
Millennium Equity Holdings, LLC v. Mahlowitz, 925 N.E.2d 513,
529 (Mass. 2010); Stoner v. Nash Finch, Inc., 446 N.W.2d 747,
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753 n.3 (N.D. 1989).

Absent controlling authority to the

contrary, the Court will allow the abuse of process claim to
proceed based upon Buksh’s alleged damages.
Conclusion
For the reasons set forth above, the motion to amend (ECF
No. 105) is granted.
DATED at Burlington, in the District of Vermont, this 4th
day of June, 2024.
/s/ William K. Sessions III
Hon. William K. Sessions III
U.S. District Court Judge

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