O'Brien v Peter Marino Architect, PLLC
Annotate this CaseDecided on June 24, 2019
Sup Court, New York County
Deirdre O'Brien, Plaintiff,
against
Peter Marino Architect, PLLC, PETER MARINO, Defendant.
654020/2015
Plaintiff:
Vladeck, Raskin & Clark, P.C.,
565 Fifth Avenue, 9th Floor
New York, NY 10017
By: Susan J. Walsh, Esq., Valdi Licul, Esq., Joshua Tarrant-Windt, Esq.
Defendant:
Kasowitz Benson Torres LLP,
1633 Broadway
New York, New York 10019
By: Eric D. Herschmann, Esq., Michael Paul Bowen, Esq., Andrew R. Kurland, Esq.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 004) 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 120, 121 were read on this motion for DISCOVERY
Upon the foregoing documents, it is ordered that defendants' motion to compel discovery and for sanctions based on privilege waiver and spoliation is denied, and plaintiff's cross-motion to compel [*2]discovery and for sanctions is granted in part and denied in part.
This case presents a discrimination claim by plaintiff, where it is alleged, among other things, that the individual defendant, Peter Marino, owner of Peter Marino Architect, PLLC, allegedly with a raised voice, referred to plaintiff using a derogatory term during a meeting with said defendant, after she left the meeting with defendant, or at both times. Plaintiff left work shortly following the encounter. Thereafter, the parties' employment relationship ended, but the parties dispute the particulars surrounding that separation: plaintiff says she was fired; defendants say plaintiff quit.
Defendants now move, pursuant to CPLR 3124, for an order (1) to compel plaintiff to produce documents and communications relating to a written statement plaintiff prepared, arguing plaintiff waived any privilege with respect to such document, (2) to compel plaintiff to continue a deposition, and (3) to impose sanctions for spoliation of evidence. Plaintiff opposes, arguing, first, that the document defendants refer to was never privileged and was in fact produced to defendants in discovery previously; second, that plaintiff has already been deposed and defendants are not entitled to depose plaintiff any further; and, third, that there was no spoliation of any evidence on the part of plaintiff.
Plaintiff cross-moves, pursuant to CPLR 3124, for an order (1) compelling defendant to produce documents related to their background investigation of plaintiff, statements written by defendants' employees, and to answer certain interrogatories related to defendants' background investigation of plaintiff, and (2) for sanctions.
It is well settled that for attorney-client privilege to apply, the proponent must establish three elements: "(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" (Favors v. Cuomo, 285 F.R.D. 187). "Waiver of privilege occurs whenever a party makes a selective disclosure of privileged materials directly to an adversary or discloses privileged communications to a third-party, destroying the confidentiality essential to privilege" (Melcher v. Apollo Med. Fund Mgmt. L.L.C., 37 AD3d 217). However, "where communications are not made in confidence they are not privileged to begin with, and there is no privilege to waive by their disclosure" (In re Chevron Corp., 650 F.3d 276, 290).
In the matter at bar, plaintiff drafted and saved on her neighbor's computer the document in question which contained plaintiff's recollection of the events leading up to and after defendant allegedly described her using a derogatory term. Plaintiff drafted and saved this document without taking any measures to protect it. Plaintiff also discussed the document and its contents with her neighbor (Waldron) and provided the document to defendants the day before her deposition. Plaintiff's statement was drafted before she retained counsel and was not made in confidence to her attorney, and defendants have not proffered any evidence to show the court otherwise. Furthermore, defendants have not made a showing that the statement was intended to be kept confidential and that the statement was made for the purpose of obtaining legal advice. Thus, the initial production could not serve as a vehicle for the waiver of attorney-client privilege by plaintiff — which appears to be the theoretical underpinning of defendants' assertion of privilege waiver. Defendants' motion seeking an order to compel discovery is denied.
Defendant also seeks an order overruling specified privilege objections interposed by plaintiff at her deposition with regard to her written statement. Though plaintiff's written statement is not privileged, defendants are not entitled to plaintiff's communications with her attorney about said statement because those communications are privileged. Moreover, defendants have failed to provide this court a reasonable basis in which to assess the propriety of plaintiff's counsel's objections — inasmuch as defendants chose not to specify in their moving papers the particular deposition questions to which plaintiff's counsel objected. This court cannot make an assessment as to the questions to which plaintiff objected to in a vacuum. Defendants' motion seeking an order to conduct additional deposition of plaintiff is, thus, denied.
Regarding defendants' motion for spoliation sanctions, "Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence" (McDonnell v. Sandaro Realty, Inc., 165 AD3d 1094, 1095; see Morales v. City of New York, 130 AD3d 792, 793). "A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense" (Golan v. North Shore-Long Is. Jewish Health Sys. Inc., 147 AD3d 1031,1032).
Here, defendants state that from the metadata collected from Waldron's (plaintiff's neighbor's) [*3]computer shows that there were at least 67 different versions of plaintiff's written statement, suggesting that plaintiff edited and deleted other versions of such statement. Plaintiff testified at her deposition that there was at least one other version of the statement printed from her neighbor's computer, and that she is now unaware of where that printed copy may be. Assuming plaintiff lost or destroyed any other version of her prepared statement, the court fails to comprehend how such an item can be presumed to constitute "key evidence." What defendants seek here is plaintiff's thought process as she came to a final decision on what her statement should contain. While we are in a high-technological era, where our electronic devices have the ability to track our thought processes before we finalize them, those ponderings should hardly be treated as key evidence — the loss of which invites spoliation sanctions. Moreover, defendants have not shown this court that plaintiff possessed the culpable mental state necessary to support a finding of sanctionable spoliation. Defendants' motion for spoliation sanctions is denied.
With regard to plaintiff's cross-motion, CPLR 310 (d)(2) protects from disclosure the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation. Attorney work product applies to documents prepared by counsel acting as such, and to materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory or strategy (Venture v Preferred Mutual, 153 AD3d 1155). Defendants state that the background check to which plaintiff refers was conducted by counsel. However, the work done by the attorney here appears to have been purely investigative in nature, i.e., the attorney was not conducting attorney work. As the nature of the work product sought is investigative, and with a mere background check hardly being expected to contain the mental impressions, conclusions, opinions or legal theories of the attorney, the background check documents sought here do not instantly become cloaked in privilege simply because the work is done by an attorney. The attorney was not hired by defendants because of his learning and professional skills to conduct background checks, and defendants did not rely on the attorney's legal opinions as a tool in deciding whether plaintiff was married or not. The background check done by the attorney is not protected by the attorney work product doctrine.
Similarly, the statements written by defendants' chief financial officer Scott Lohr (Lohr), and human resources director Dora Llerena (Llerena) soon following their meeting(s) with plaintiff are not afforded the protection of attorney-client privilege or attorney work product protection. Defendants argue that both statements were made at the direction of counsel in anticipation of litigation. However, what plaintiff seeks is not the discussion that took place between Lohr and Llerena and their attorney, but their written statements. The discussions between Lohr and Llerena and defendants' attorney may be protected by attorney-client privilege, but the information sought here consists of standard written statements recounting near-contemporaneous factual observations. Both Lohr and Llerena are witnesses, and their witness statements are not protected by privilege merely because they received legal advice before (or after) meeting with plaintiff about a job-related concern. Such witness statements should be produced in the normal course of discovery.
Plaintiff's cross-motion for sanctions is denied as a matter of this court's discretion.
Accordingly, it is
ORDERED that defendants' motion to compel discovery and for sanctions based on privilege waiver and spoliation is denied in its entirety; and it is further
ORDERED that the portion of plaintiff's cross-motion seeking to compel defendants to produce all relevant documents and communications concerning the investigation of plaintiff's background is granted, and defendants shall produce all relevant documents within 20 days of the date of this order; and it is further
ORDERED that the portion of plaintiff's motion seeking an order to compel defendants to answer plaintiff's interrogatories and to specify who discovered plaintiff's marital status, how defendants' investigation was conducted, and when the investigation into plaintiff's background was conducted is granted, and defendants shall produce the relevant information within 20 days of the date of this order; and it is further
ORDERED that the portion of plaintiff's motion seeking sanctions is denied; and it is further
ORDERED that counsel are directed to appear for a compliance conference in Part 43, located at 60 Centre Street, Room 412 on August 8, 2019 at 11:00 a.m.
This constitutes the decision and order of the court.
[*4]DATE: 6/24/2019
ROBERT R. REED, J.S.C.
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