Preview
FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232
NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WARREN
EVELYN O'BRIEN, JAMIE LYNN Index No.: 65232/2018
PATCHETT, CHRIS FORTNER, MICHAEL
PETTA, JESSICA TAYLOR-MACKRODT,
and HEATHER MARTIN on behalf of DEFENDANTS’ MEMORANDUM OF
themselves and LAW IN SUPPORT OF CROSS-MOTION
others similarly situated, TO COMPEL DEPOSITIONS OF
PLAINTIFFS WITH EXHIBITS
Plaintiffs,
v.
SAGBOLT, LLC, OCEAN PROPERTIES,
LTD., PORTSMOUTH CORPORATE
FINANCIAL SERVICES, INC., PATRICK
WALSH and THOMAS GUAY,
Defendants.
Defendants Sagbolt, LLC (“Sagbolt”), Ocean Properties, Ltd. (“Ocean Properties”), Patrick
Walsh and Thomas Guay (collectively “Defendants”), by and through their undersigned attorneys,
submit this memorandum of law in support of their motion to compel the supplemental production
of documents and appearance for related depositions of Plaintiffs Evelyn O’Brien and Chris
Fortner (“Cross-Motion”) 1, and state as follows:
1
As Your Honor may recall, Defendants initially raised this issue by letter dated November 30,
2020. By email dated December 7, 2020, Plaintiffs’ counsel informed the Court that the parties
were “attempting to consensually resolve the issue” and therefore Defendants withdrew their
request for a pre-motion conference. Because the parties been unable to resolve these issues,
however, Defendants are constrained to bring this Cross-Motion.
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I. INTRODUCTION AND RELEVANT BACKGROUND
Plaintiffs in this putative class action allege that Defendants misrepresented to customers
of The Sagamore Hotel the nature and disposition of a “service charge” added to their bills for
various banquet and similar events. Specifically, Plaintiffs claim Defendants failed to inform
customers that the service charge would not be remitted to the servers as a tip, but rather would be
kept by Defendants.
Defendants took Mr. Fortner’s remote deposition on October 8, 2020. The prior evening,
Plaintiffs’ counsel unexpectedly produced by email four pages of documents “consisting of several
text messages he [Mr. Fortner] transmitted which are responsive to pending requests.” 2 Mr.
Fortner testified the following day that (i) he had made virtually no effort to conduct a good faith
search for text messages at any time during the litigation, and (ii) it was “highly unlikely” that he
had located all of the relevant and responsive text messages in his possession. Defendants
therefore requested that Mr. Fortner – and any other Plaintiff who had not performed an adequate
search of their personal correspondence for discoverable communications – do so and supplement
their document productions accordingly.
Defendants pursued their request in good faith for numerous weeks thereafter, only to run
into a stone wall. Mr. Fortner supplemented his production on December 11, 2020 with a sixteen-
page un-Bates-numbered production, attached as Exhibit B. Mr. Fortner’s supplemental
production was riddled with unexplained blacked-out sections. Then on December 15, 2020, Ms.
O’Brien produced thirteen pages Bates-numbered O’Brien000259-271, attached as Exhibit C. As
2
Mr. Fortner’s initial four-page production on October 7, 2020, Bates-numbered Fortner0000001-
4, is attached as Exhibit A.
2
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with Mr. Fortner’s supplemental production four days earlier, Ms. O’Brien’s December 15
production had many sections blacked-out without explanation.
Defendants again met and conferred with Plaintiffs by conference call on January 5, 2021,
and followed up by emails on January 13 and January 25, attached collectively as Exhibit D.
Defendants offered several specific proposals to address their concerns with Plaintiffs’ multiple
productions, including potential in camera review of allegedly privileged texts or entry of a
specially-tailored confidentiality order. Plaintiffs simply ignored these proposals.
Instead, Plaintiffs on January 29 produced yet another batch of text messages, this time a
nearly fifty-page production from Ms. O’Brien Bates-numbered O’Brien000267[sic]-313,
attached as Exhibit E. In their cover email, attached as Exhibit F, Plaintiffs stated in part: “You
will note that certain pages are redacted in full. That is because we have redacted privileged
information, and information that is not relevant or responsive to Defendants’ discovery requests.”
Plaintiffs – again – produced no privilege log, nor did they make any effort to differentiate between
those redactions covering supposed privilege and those covering relevance objections.
MEMORANDUM OF LAW
Defendants Are Entitled to an Order Compelling Plaintiffs’ Depositions on Dates Certain
C.P.L.R. Rule 3101 entitles litigants to “full disclosure of all matter material and necessary
in the prosecution or defense of an action, regardless of the burden of proof,” and Rule 3106
entitles a party to “take the testimony of any person by deposition upon oral or written questions.”
As the Appellate Division, Third Department, has instructed for more than half a century, “there
is no … doubt but that [the disclosure Rules] shall be construed liberally.” Kuzmak v. Atlantic
Cement Co., 248 N.Y.S.2d 115, 20 A.D.2d 845 (3rd Dept. 1964). Cf. Welch v. Globe Indem. Co.,
267 N.Y.S.2d 48, 25 A.D.2d 70 (3rd Dept. 1966) (reaffirming Kuzmak).
3
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Here, Defendants are entitled to full and unredacted production of Plaintiffs O’Brien’s and
Fortner’s plainly relevant text message exchanges, and to take their deposition testimony about
those exchanges. The deficiencies in Plaintiffs’ serial productions are both obvious and legion,
and while we are prepared to discuss them at length during the pre-motion conference, for the
Court’s convenience we simply highlight several examples here. First, Plaintiffs have never
provided a log of any sort identifying which of the redacted text messages – messages which are
obviously between Plaintiffs O’Brien and Fortner alone, without any attorney or other individual
involved – are supposedly privileged. Without such a log, neither Defendants nor the Court can
even remotely evaluate Plaintiffs’ privilege assertions.
Second, many of Plaintiffs’ myriad redactions, the specific basis for which they never
identify as to any individual redacted message, render the unredacted messages devoid of
necessary context. For example, in a text message Mr. Fortner sent to Ms. O’Brien at some
unspecified date prior to October 19, 2018, he says: “First they heard of captain getting cash
envelopes as compensation[.]” See Ex. C at O’Brien259. The message to which Mr. Fortner was
plainly replying, however, is redacted. Id. Cf. Ex. E at O’Brien 273. Similarly, Mr. Fortner opens
another text whose timing is obscured by redaction by saying: “HR accountant I think her name
was Karen.?” See Ex. E at O’Brien 304. Although Mr. Fortner’s text was rather obviously a
response to a question from Ms. O’Brien, that question is redacted. Id.
Moreover, there are glaring discrepancies between the four productions which cannot be
explained away as a natural consequence of supplementation. Simply by way of example: (i) Ms.
O’Brien’s latest production starts with a brief exchange announcing “lawsuits [sic] been filed and
they’re in the second phase” that appears in no prior production (see Ex. E at O’Brien267); (ii)
Ms. O’Brien’s latest production includes an exchange where Mr. Fortner calls her “famous now”
4
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that likewise appears in no prior production (see Ex. E at O’Brien275); yet (iii)Ms. O’Brien’s
latest production omits a lengthy text in which she relates her story about “Bill from New York
general” – a text that appears in all three prior productions (see Ex. A at Fortner1; Ex. B at p. 13;
and Ex. C at O’Brien268). Again, these are merely a few examples of the numerous discrepancies.
The only way to resolve these serious deficiencies and clarify these discrepancies is for
Plaintiffs O’Brien and Fortner to produce complete and unredacted copies of their relevant text
messages. Only then will Defendants be in a position to fully and fairly evaluate these plainly
germane exchanges between two named Plaintiffs. Furthermore, Defendants are entitled to
Plaintiffs’ continued depositions to address the questions that these text messages raise.
II. CONCLUSION
Wherefore, Defendants respectfully request this Court enter an Order compelling Plaintiffs
O’Brien and Fortner to produce complete and unredacted copies of their relevant text message
exchanges, and to appear for continued deposition concerning those exchanges.
Dated: August 20, 2021 Respectfully submitted,
GREENBERG TRAURIG, LLP
By: /s/ Michael J. Slocum________
Michael J. Slocum
500 Campus Drive
Suite 400
Florham Park, New Jersey 07932
(973) 443-3509
slocumm@gtlaw.com
Catherine H. Molloy
Florida Bar No. 33500
101 E. Kennedy Boulevard
Suite 1900
Tampa, Florida 33602
molloyk@gtlaw.com
Admitted pro hac vice
(813) 318-5700 – Telephone
5
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Attorneys for Sagbolt, LLC,
Ocean Properties, Ltd., Patrick Walsh and
Thomas Guay
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Preview
FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WARREN EVELYN O'BRIEN, JAMIE LYNN Index No.: 65232/2018 PATCHETT, CHRIS FORTNER, MICHAEL PETTA, JESSICA TAYLOR-MACKRODT, and HEATHER MARTIN on behalf of DEFENDANTS’ MEMORANDUM OF themselves and LAW IN SUPPORT OF CROSS-MOTION others similarly situated, TO COMPEL DEPOSITIONS OF PLAINTIFFS WITH EXHIBITS Plaintiffs, v. SAGBOLT, LLC, OCEAN PROPERTIES, LTD., PORTSMOUTH CORPORATE FINANCIAL SERVICES, INC., PATRICK WALSH and THOMAS GUAY, Defendants. Defendants Sagbolt, LLC (“Sagbolt”), Ocean Properties, Ltd. (“Ocean Properties”), Patrick Walsh and Thomas Guay (collectively “Defendants”), by and through their undersigned attorneys, submit this memorandum of law in support of their motion to compel the supplemental production of documents and appearance for related depositions of Plaintiffs Evelyn O’Brien and Chris Fortner (“Cross-Motion”) 1, and state as follows: 1 As Your Honor may recall, Defendants initially raised this issue by letter dated November 30, 2020. By email dated December 7, 2020, Plaintiffs’ counsel informed the Court that the parties were “attempting to consensually resolve the issue” and therefore Defendants withdrew their request for a pre-motion conference. Because the parties been unable to resolve these issues, however, Defendants are constrained to bring this Cross-Motion. ACTIVE 52637086v1 1 of 6 FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021 I. INTRODUCTION AND RELEVANT BACKGROUND Plaintiffs in this putative class action allege that Defendants misrepresented to customers of The Sagamore Hotel the nature and disposition of a “service charge” added to their bills for various banquet and similar events. Specifically, Plaintiffs claim Defendants failed to inform customers that the service charge would not be remitted to the servers as a tip, but rather would be kept by Defendants. Defendants took Mr. Fortner’s remote deposition on October 8, 2020. The prior evening, Plaintiffs’ counsel unexpectedly produced by email four pages of documents “consisting of several text messages he [Mr. Fortner] transmitted which are responsive to pending requests.” 2 Mr. Fortner testified the following day that (i) he had made virtually no effort to conduct a good faith search for text messages at any time during the litigation, and (ii) it was “highly unlikely” that he had located all of the relevant and responsive text messages in his possession. Defendants therefore requested that Mr. Fortner – and any other Plaintiff who had not performed an adequate search of their personal correspondence for discoverable communications – do so and supplement their document productions accordingly. Defendants pursued their request in good faith for numerous weeks thereafter, only to run into a stone wall. Mr. Fortner supplemented his production on December 11, 2020 with a sixteen- page un-Bates-numbered production, attached as Exhibit B. Mr. Fortner’s supplemental production was riddled with unexplained blacked-out sections. Then on December 15, 2020, Ms. O’Brien produced thirteen pages Bates-numbered O’Brien000259-271, attached as Exhibit C. As 2 Mr. Fortner’s initial four-page production on October 7, 2020, Bates-numbered Fortner0000001- 4, is attached as Exhibit A. 2 ACTIVE 52637086v1 2 of 6 FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021 with Mr. Fortner’s supplemental production four days earlier, Ms. O’Brien’s December 15 production had many sections blacked-out without explanation. Defendants again met and conferred with Plaintiffs by conference call on January 5, 2021, and followed up by emails on January 13 and January 25, attached collectively as Exhibit D. Defendants offered several specific proposals to address their concerns with Plaintiffs’ multiple productions, including potential in camera review of allegedly privileged texts or entry of a specially-tailored confidentiality order. Plaintiffs simply ignored these proposals. Instead, Plaintiffs on January 29 produced yet another batch of text messages, this time a nearly fifty-page production from Ms. O’Brien Bates-numbered O’Brien000267[sic]-313, attached as Exhibit E. In their cover email, attached as Exhibit F, Plaintiffs stated in part: “You will note that certain pages are redacted in full. That is because we have redacted privileged information, and information that is not relevant or responsive to Defendants’ discovery requests.” Plaintiffs – again – produced no privilege log, nor did they make any effort to differentiate between those redactions covering supposed privilege and those covering relevance objections. MEMORANDUM OF LAW Defendants Are Entitled to an Order Compelling Plaintiffs’ Depositions on Dates Certain C.P.L.R. Rule 3101 entitles litigants to “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof,” and Rule 3106 entitles a party to “take the testimony of any person by deposition upon oral or written questions.” As the Appellate Division, Third Department, has instructed for more than half a century, “there is no … doubt but that [the disclosure Rules] shall be construed liberally.” Kuzmak v. Atlantic Cement Co., 248 N.Y.S.2d 115, 20 A.D.2d 845 (3rd Dept. 1964). Cf. Welch v. Globe Indem. Co., 267 N.Y.S.2d 48, 25 A.D.2d 70 (3rd Dept. 1966) (reaffirming Kuzmak). 3 ACTIVE 52637086v1 3 of 6 FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021 Here, Defendants are entitled to full and unredacted production of Plaintiffs O’Brien’s and Fortner’s plainly relevant text message exchanges, and to take their deposition testimony about those exchanges. The deficiencies in Plaintiffs’ serial productions are both obvious and legion, and while we are prepared to discuss them at length during the pre-motion conference, for the Court’s convenience we simply highlight several examples here. First, Plaintiffs have never provided a log of any sort identifying which of the redacted text messages – messages which are obviously between Plaintiffs O’Brien and Fortner alone, without any attorney or other individual involved – are supposedly privileged. Without such a log, neither Defendants nor the Court can even remotely evaluate Plaintiffs’ privilege assertions. Second, many of Plaintiffs’ myriad redactions, the specific basis for which they never identify as to any individual redacted message, render the unredacted messages devoid of necessary context. For example, in a text message Mr. Fortner sent to Ms. O’Brien at some unspecified date prior to October 19, 2018, he says: “First they heard of captain getting cash envelopes as compensation[.]” See Ex. C at O’Brien259. The message to which Mr. Fortner was plainly replying, however, is redacted. Id. Cf. Ex. E at O’Brien 273. Similarly, Mr. Fortner opens another text whose timing is obscured by redaction by saying: “HR accountant I think her name was Karen.?” See Ex. E at O’Brien 304. Although Mr. Fortner’s text was rather obviously a response to a question from Ms. O’Brien, that question is redacted. Id. Moreover, there are glaring discrepancies between the four productions which cannot be explained away as a natural consequence of supplementation. Simply by way of example: (i) Ms. O’Brien’s latest production starts with a brief exchange announcing “lawsuits [sic] been filed and they’re in the second phase” that appears in no prior production (see Ex. E at O’Brien267); (ii) Ms. O’Brien’s latest production includes an exchange where Mr. Fortner calls her “famous now” 4 ACTIVE 52637086v1 4 of 6 FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021 that likewise appears in no prior production (see Ex. E at O’Brien275); yet (iii)Ms. O’Brien’s latest production omits a lengthy text in which she relates her story about “Bill from New York general” – a text that appears in all three prior productions (see Ex. A at Fortner1; Ex. B at p. 13; and Ex. C at O’Brien268). Again, these are merely a few examples of the numerous discrepancies. The only way to resolve these serious deficiencies and clarify these discrepancies is for Plaintiffs O’Brien and Fortner to produce complete and unredacted copies of their relevant text messages. Only then will Defendants be in a position to fully and fairly evaluate these plainly germane exchanges between two named Plaintiffs. Furthermore, Defendants are entitled to Plaintiffs’ continued depositions to address the questions that these text messages raise. II. CONCLUSION Wherefore, Defendants respectfully request this Court enter an Order compelling Plaintiffs O’Brien and Fortner to produce complete and unredacted copies of their relevant text message exchanges, and to appear for continued deposition concerning those exchanges. Dated: August 20, 2021 Respectfully submitted, GREENBERG TRAURIG, LLP By: /s/ Michael J. Slocum________ Michael J. Slocum 500 Campus Drive Suite 400 Florham Park, New Jersey 07932 (973) 443-3509 slocumm@gtlaw.com Catherine H. Molloy Florida Bar No. 33500 101 E. Kennedy Boulevard Suite 1900 Tampa, Florida 33602 molloyk@gtlaw.com Admitted pro hac vice (813) 318-5700 – Telephone 5 ACTIVE 52637086v1 5 of 6 FILED: WARREN COUNTY CLERK 08/20/2021 01:40 PM INDEX NO. EF2018-65232 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 08/20/2021 Attorneys for Sagbolt, LLC, Ocean Properties, Ltd., Patrick Walsh and Thomas Guay 6 ACTIVE 52637086v1 6 of 6