Scarola Ellis LLP v Padeh

[*1] Scarola Ellis LLP v Padeh 2011 NY Slip Op 52224(U) Decided on December 8, 2011 Supreme Court, New York County York, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 8, 2011
Supreme Court, New York County

Scarola Ellis LLP, Plaintiff,

against

Elan Padeh, Defendant.



13781/2009



Attorneys Plaintiff:

Scarola, Malone & Zubatov, LLP (Pro Se)

By: Alexander Zubatov, Esq.

Tele. No. (212) 757-0007

Attorneys Defendant: Beck & Strauss, PLLC

By: Leland Stuart Beck, Esq.

Tele. No. (516) 228-8383

Louis B. York, J.

The action arises from Elan Padeh's (hereinafter "defendant") settlement of a prior case for which Scarola Ellis LLP (hereinafter "plaintiff") served as defendant's counsel. Defendant brought an employment action against the Corcoran Group, his former employer. George Zelma served as defendant's counsel and entered into a contingency agreement with plaintiff for its service as trial counsel. Defendant later signed a separate retainer agreement with plaintiff in August 2006. In 2007, defendant reached a settlement with the Corcoran Group. Mr. Zelma, defendant's attorney of record, represented defendant in the settlement negotiations. Defendant excluded plaintiff from participating in these negotiations. Plaintiff brought the present case on the basis that defendant was unjustly enriched when he settled for a lesser fee than he would have otherwise received in exchange for intangible benefits, for which he did not provide compensation to plaintiff.

Plaintiff first requested discovery on March 29, 2010. Defendant replied on April 27, 2010 stating that he was not in possession of any documents concerning this lawsuit that were not already in plaintiff's possession. On September 29, 2010 both parties attended a court conference in which the Court directed defendant to produce an affidavit from a system [*2]administrator or other similar computer systems specialist which stated there were no responsive documents and also detailed the search methods used. On November 10, 2010 defendant produced an affidavit by Frank Walsh, a computer engineer employed by Tekscape, stating that he found no documents on the internal network or servers. Defendant also provided his own affidavit on January 11, 2011 stating that he has provided all relevant documents in his possession to plaintiff.

Plaintiff moved, pursuant to CPLR 3124, to compel defendant to produce documents responsive to its March 29, 2010 request for discovery. This Court ordered that defendant produce a privilege log in compliance with CPLR 3122(b). Additionally, this Court ordered that defendant provide plaintiff with a supplemental affidavit from Frank Walsh explaining which computers and system were searched, the date of the search, what kind and type of search or additional searches if necessary were performed, whether a search was made for other types of electronically stored documents other than emails, whether a search was made for deleted content, and what the origins were of the nine emails attached as exhibits in the opposition to the motion for summary judgment. Defendant did not produce a privilege log, stating that there were no privileged documents. Defendant provided a supplemental affidavit from Frank Walsh.

In the present motion, plaintiff contends that defendant has willfully withheld or deleted documents. Thus, the current motion seeks to have this Court impose sanctions striking defendant's answer, dismissing any counterclaims, and forcing defendant to bear the costs of plaintiff's current motion and prior motion to compel under CPLR 3126. Plaintiff argues that defendant has continuously failed to comply with discovery requests and procedures.

Plaintiff first claims that because, when this conflict arose, it served as defendant's counsel, no privilege claims can be asserted as to any discoverable documents. At the very least, plaintiff contends, a privilege log should be provided to plaintiff in compliance with CPLR 3122(b), and the Court's previous order. Defendant states that plaintiff's contention that no privilege claims can be asserted is incorrect and, in any case, there are no documents or other materials being marked as privileged.

Plaintiff then states that defendant's failure to comply with the Court's orders when producing its supplemental affidavit from Frank Walsh and his failure to provide a privilege log show that defendant is withholding or deleting documents. Defendant responds that there simply are no discoverable documents, and that this Court should look to resolve the claims in this case on their merits. Plaintiff contends that defendant's discovery failures require the highest sanctions, as they ignore the Court's orders and affect the core of this case.

Regarding the privilege log, Leland Stuart Beck, an attorney for defendant, has affirmed that he does not have any privileged documents or materials. However, Mr. Beck's affirmation is vague, does not adequately specify the types of documents reviewed or discuss privileged communications between defendant and Mr. Zelma, and potentially conflicts with the party's own statements. Therefore, the Court will not allow any documents produced at trial which were not disclosed during discovery and Mr. Beck must provide a second affirmation which more thoroughly details the reasons for not providing a privilege log. Cf. Anonymous v. High School for Environmental Studies, 32 AD3d 353, 359, 820 N.Y.S.2d 570, 578 (1st Dept. 2007)(where privilege was asserted in conclusory fashion, party did not satisfy burden necessary to exclude the documents from discovery). [*3]

"An affidavit regarding the unavailability of documents that are the subject of a discovery order must document a thorough search conducted in good faith. It should include details such as where the subject records were likely to be kept, what efforts, if any, were made to preserve them, whether such records were routinely destroyed, [and] whether a search [was] conducted in every location where the records were likely to be found." Henderson-Jones v. City of New York, 87 AD3d 498, 505, 928 N.Y.S.2d 536, 542 (1st Dept. 2011)(citation and internal quotation marks omitted). Moreover, this Court explicitly directed defendant to provide such an affidavit. After reviewing the supplemental affidavit submitted by Frank Walsh, however, the Court notes that the affidavit does not explain which computers and systems were searched, when the search occurred, whether a search was made for other types of electronically stored documents other than emails, whether a search was made for deleted content and what the origins were of the nine emails attached as exhibits in defendant's affirmation in opposition to plaintiff's motion for summary judgment. Thus it is not fully compliant with the prevailing law and the Court's prior order. Therefore, it is

ORDERED that the motion is granted to the limited extent of ordering defendant to provide an affidavit from Frank Walsh or other computer systems specialist which contains the necessary details set forth above, and it is further

ORDERED that Leland Stuart Beck shall provide a second supplemental affirmation which clearly sets forth the reasons for not providing a privilege log in sufficient detail; and it is further

ORDERED that defendant has 20 days from service of a copy of this order with notice of entry to provide the documents; and it is further

ORDERED that defendant may not produce at trial any documents that he fails to disclose during the discovery process.

ENTER;

______________________________

LOUIS B. YORK, J.S.C.