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iD: YORK OUN PK Yd 04: DM INDEX NO. 156852/2020
NYSCEF BOC. NO. 90 RECEIVED NYSCEF: 05/08/2023
Exhibit H
INDEX NO. 156852/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023
Message
From: DiNapoli, John [/O=SEYFARTH/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=JDINAPOLI]
Sent: 1/13/2023 4:05:09 PM
To: ‘Ravi Sattiraju' [rsattiraju@s-tlawfirm.com]
cc: Kappelman, Lynn [/o=Seyfarth/ou=First Administrative Group/cn=Recipients/cn=LKappelman]; Nancy Erika Smith
[nsmith@smithmullin.com]; vpallotto@smithmullin.com
Subject: RE: Gray-Outstanding Discovery Issues
Ravi,
Our responses are below in red. | am available today and next week to discuss.
From: Ravi Sattiraju
Sent: Friday, January 13, 2023 10:56 AM
To: DiNapoli, John
Cc: Kappelman, Lynn ; Nancy Erika Smith ;
vpallotto@smithmullin.com
Subject: RE: Gray-Outstanding Discovery Issues
This Message Is From an External Sender
This message came from outside your organization.
John,
Following up on this. Are you available next week to discuss?
Ravi
From: Ravi Sattiraju
Sent: Tuesday, January 3, 2023 5:58 PM
To: DiNapoli, John
Cc: Kappelman, Lynn ; Nancy Erika Smith ;
pallotto@smithmullin.com
Subject: Gray-Outstanding Discovery Issues
John,
| hope that you had a safe and enjoyable holiday season. The following sets forth our positions on the
outstanding written discovery issues.
Remaining Discovery Requested by Defendant
Plaintiff's Mitigation Efforts:
Plaintiff has not derived any income from the restaurants operated by her husband. Moreover, Plaintiffs role
at, or interest in, her husband’s restaurant has not changed as a result of her termination. As such, this does
not relate to Plaintiff's damage claims.
Plaintiff will produce any mitigation information that she can download from Linkedin, as requested in your
letter.
. Under Plaintiff's own admission, she has been “assisting at [her] family business due to the pandemic” since
2019. P001015. You note that her “role” at this business has not changed since her termination. Her admission
contradicts your assertion. In any event, SMBC is entitled to documents where Plaintiff is listed on the payroll,
INDEX NO. 156852/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023
any work schedules that she is on, documents sufficient to establish her ownership interest in this business, and
any distributions she received from it. This should be produced forthwith.
Plaintiff's Medical Records:
Plaintiff has provided a detailed medical privilege log setting forth that the redacted information does not relate
to her emotional distress claim. Defendant does not have the right to pour through unrelated aspects of
Plaintiff's medical records as this would constitute a major violation of her privacy. We have double checked
the pages set forth in your November 8, 2022 letter and the excerpts are properly redacted.
° By claiming emotional distress damages, SMBC is entitled to review her medical records in their entirety. She
has waived any claim to privacy by putting this in controversy. You cannot unilaterally decide to conceal
diagnoses and medications she was prescribed during the time she alleges she suffered emotional distress. This
is improper. Your “redaction log” notes this material is “privileged, Non-related healthcare information.” It is
not. Even if you claim that Plaintiff has certain “unrelated” psychological conditions, their existence goes
directly to her claimed emotional distress damages. Those conditions, and the medications her doctors
prescribed for those conditions, may cause some or all of the same symptoms for which she is claiming damages
from SMBC. As such, SMBC has a right to her entire medical records unless she intends to withdraw her claim
for emotional distress damages. See McLeod v. Metro. Transp. Auth., No. 105945/2011, 2015 WL 2190780, at *4
(Sup. Ct. N.Y. Cnty. 2015) (“It is well settled that a party must provide duly executed and acknowledged written
authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR
when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental
condition in issue.” (internal quotation and citation omitted)).
SMBC Document Request 20
Plaintiff is not setting forth all communications between herself and her law firms arising out of this litigation in
her privilege log. We further note that Defendant has not included such communications in its privilege log.
Arrest and Conviction Records
Plaintiff does not have any responsive records in her possession.
Plaintiff's Selection of Documents
The information you seek would breach attorney-client privilege. Plaintiff has produced responsive materials in
her possession. Once again, Defendant has not similarly disclosed whether its employees, in-house counsel
or your firm reviewed documents before production. There is no authority for holding Plaintiff to a higher
standard.
Moreover, as we previously discussed, Plaintiff still seeks the following information from Defendant.
Remaining Discovery Sought by Plaintiff
We need the following information immediately, but reserve the right to move for the additional information
outlined in Nancy’s September 19, 2022 letter.
e We note that we responded to Nancy’s September 19 letter on October 4 and produced documents consistent
with our position in that letter to you on November 8. This is the first response we have received to our October
4 and November 8 letters.
Defendant’s investigation into Plaintiff's complaints
We will shortly be serving a corporate representative deposition notice on the investigations Defendant
conducted into Plaintiff's complaints as well as the factual basis for the assertion of privilege for those
investigations.
° You are free to serve whatever notice you think is proper. We do not believe discovery into the factual basis of
any privilege assertion is a proper topic for a corporate representative. We will contest this at the appropriate
time. SMBC reserves all rights.
INDEX NO. 156852/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023
Complaints at SMBC discrimination, harassment, and retaliation from 2019 to the present.
It is well established that such requests are appropriate to redress employment discrimination. Finch v.
Hercules Inc., 149 F.R.D. 60, 62 (D. Del. 1993) (quoting Marshall v. Elec. Hose and Rubber Co., 68 F.R.D.
287, 295 (D. Del. 1975)). Thus, “the scope of discovery must go beyond the specifics of the plaintiff's claim.”
Ri Sau Kuen Chan v. NYU Downtown Hosp., No. 03-3003, 2004 WL 1886009, at *4 (S.D.N.Y. August 23,
2004). Past allegations of discriminatory and retaliatory conduct are relevant to gauge Defendant's handling
of discrimination complaints. This is especially the case because Plaintiff alleges not only disparate
treatment, but also retaliation. For such purpose, relevance is not limited to the specific underlying form of
discrimination complained of. See Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 197 (D.N.J. 2010)
(permitting discovery of complaints involving unrelated bases of discrimination in order to determine how
defendant “identifies and assesses other forms of discrimination . . . and what, if any, steps they take to
remedy the other forms of discrimination they find”); see also Smith v. Ward Leonard Elec. Co., Inc., No.
00-3703, 2004 WL 1661098, at *7 (S.D.N.Y. July 23, 2004) (a plaintiff may establish a causal connection
between her protected conduct and adverse employment actions by “disparate treatment of fellow
employees who engaged in similar conduct”).
e As we have said on multiple occasions, SMBC does not have any knowledge of any complaints involving
discrimination or retaliation made against Paul Stolbof, Gus Moore, or Robin Milberg — other than Plaintiff's
complaint. If needed, an Executive Director in SMBC’s Human Resources Department can sign an affidavit
to this effect. This is all Plaintiff is entitled to receive in discovery. See Vuona v. Merrill Lynch & Co., No. 10
CIV. 6529 PAE, 2011 WL 5553709, at *7 (S.D.N.Y. Nov. 15, 2011). Plaintiffs cases, most outside of this
jurisdiction, do not lead to a contrary result.
Risk events from 2019 forward: This information is necessary for Plaintiff to establish that there were no
issues with her work performance.
e The voluminous discovery SMBC provided, covering over eight production and 5,000 pages, establishes that
there were many issues with Plaintiffs work performance. In any event, we asked you to identify what
specific Risk Event Form or Forms, limited to Plaintiff's department, Plaintiff was seeking back in early
October. Plaintiff did not respond until now. Simply asserting that they are needed to establish “there were
no issues with her work performance” is insufficient. Again, if Plaintiff can identify a specific and particular
need for a limited number of Risk Event Forms, we will consider and respond accordingly.
Top Desk Procedures for Settlement and Treasury for 2019. Please see Nancy’s letter of September 19,
2022, at page 4, second bullet point from the top. Your client should know what these documents are and
should be able to easily produce same.
° Please see our October 4 response. We do not know what documents Plaintiff is referring to, even after
conferring with an employee in settlements back in October. As we noted previously in our October 4 response,
we assume Plaintiff is referring to documents titled Payments Release Process and Intraday Cash
Reconciliation. We reviewed 245 documents titled “Intraday Cash” and, as noted in our November 8 letter, did
not find any documents responsive to Plaintiff's requests.
Salary and performance reviews for Emmanuel Dizon and Christina Tagglia.
° individuals are not mentioned in the Complaint and we fail to see how the performance reviews and salary
information for either can possibly be relevant in the case. Should Plaintiff provide SMBC with the reasons why
she thinks these individuals are relevant, we will respond accordingly. We asked for this information concerning
Dizon back in October. This is the first we are hearing of Tagglia.
Paul Stolbof’s personnel file. Specifically, we need his 2019 performance review.
° We will send you a letter regarding Stolbof’s personnel file. SMBC produced his 2019 performance
review. SMBC-000385.
Any organizational charts in which Ms. Gray appears.
e We have provided Plaintiff with over a dozen organizational charts. See SMBC-000056 to SMBC-000059; SMBC-
000604 to SMBC-000612; SMBC-000614 to SMBC-000616. It is unclear what more Plaintiff could possibly need
regarding the organizational units of which she was a part.
INDEX NO. 156852/2020
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023
Defendant has not provided a certificate of completeness from Defendant confirming that responsive materials
have been produced.
e | am unaware of any requirement under New York law to provide a “certificate of completeness.” It is my
understanding that this is a New Jersey rule. See N.J. R. 4:18-1(c). Not a New York rule. Should Plaintiff
disagree, we ask that Plaintiff send us the provision of the CPLR upon which she relies along with any applicable
case law, and SMBC will respond accordingly.
Finally, please provide dates for the notices we served as soon as possible.
. Noticing 13 depositions (with a 14th on the way as you note above) is not reasonable, not proportional to the
needs of the case, and we believe is designed to harass and burden SMBC. We are willing to meet-and-confer to
narrow Plaintiff's list to one that is appropriate in this case. Absent this, SMBC intends to move for protective
orders for those individuals that are not centrally relevant to the claims in the case.
Thanks very much.
Ravi
Ravi Sattiraju, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Office: (609) 469-2110
Direct Dial: (609) 469-2112
Mobile: (609) 235-5731
Email: rsattiraju@s-tlawfirm.com
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attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting
marketing or recommending to another party any transaction or matter addressed herein.
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iD: YORK OUN PK Yd 04: DM INDEX NO. 156852/2020 NYSCEF BOC. NO. 90 RECEIVED NYSCEF: 05/08/2023 Exhibit H INDEX NO. 156852/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023 Message From: DiNapoli, John [/O=SEYFARTH/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=JDINAPOLI] Sent: 1/13/2023 4:05:09 PM To: ‘Ravi Sattiraju' [rsattiraju@s-tlawfirm.com] cc: Kappelman, Lynn [/o=Seyfarth/ou=First Administrative Group/cn=Recipients/cn=LKappelman]; Nancy Erika Smith [nsmith@smithmullin.com]; vpallotto@smithmullin.com Subject: RE: Gray-Outstanding Discovery Issues Ravi, Our responses are below in red. | am available today and next week to discuss. From: Ravi Sattiraju Sent: Friday, January 13, 2023 10:56 AM To: DiNapoli, John Cc: Kappelman, Lynn ; Nancy Erika Smith ; vpallotto@smithmullin.com Subject: RE: Gray-Outstanding Discovery Issues This Message Is From an External Sender This message came from outside your organization. John, Following up on this. Are you available next week to discuss? Ravi From: Ravi Sattiraju Sent: Tuesday, January 3, 2023 5:58 PM To: DiNapoli, John Cc: Kappelman, Lynn ; Nancy Erika Smith ; pallotto@smithmullin.com Subject: Gray-Outstanding Discovery Issues John, | hope that you had a safe and enjoyable holiday season. The following sets forth our positions on the outstanding written discovery issues. Remaining Discovery Requested by Defendant Plaintiff's Mitigation Efforts: Plaintiff has not derived any income from the restaurants operated by her husband. Moreover, Plaintiffs role at, or interest in, her husband’s restaurant has not changed as a result of her termination. As such, this does not relate to Plaintiff's damage claims. Plaintiff will produce any mitigation information that she can download from Linkedin, as requested in your letter. . Under Plaintiff's own admission, she has been “assisting at [her] family business due to the pandemic” since 2019. P001015. You note that her “role” at this business has not changed since her termination. Her admission contradicts your assertion. In any event, SMBC is entitled to documents where Plaintiff is listed on the payroll, INDEX NO. 156852/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023 any work schedules that she is on, documents sufficient to establish her ownership interest in this business, and any distributions she received from it. This should be produced forthwith. Plaintiff's Medical Records: Plaintiff has provided a detailed medical privilege log setting forth that the redacted information does not relate to her emotional distress claim. Defendant does not have the right to pour through unrelated aspects of Plaintiff's medical records as this would constitute a major violation of her privacy. We have double checked the pages set forth in your November 8, 2022 letter and the excerpts are properly redacted. ° By claiming emotional distress damages, SMBC is entitled to review her medical records in their entirety. She has waived any claim to privacy by putting this in controversy. You cannot unilaterally decide to conceal diagnoses and medications she was prescribed during the time she alleges she suffered emotional distress. This is improper. Your “redaction log” notes this material is “privileged, Non-related healthcare information.” It is not. Even if you claim that Plaintiff has certain “unrelated” psychological conditions, their existence goes directly to her claimed emotional distress damages. Those conditions, and the medications her doctors prescribed for those conditions, may cause some or all of the same symptoms for which she is claiming damages from SMBC. As such, SMBC has a right to her entire medical records unless she intends to withdraw her claim for emotional distress damages. See McLeod v. Metro. Transp. Auth., No. 105945/2011, 2015 WL 2190780, at *4 (Sup. Ct. N.Y. Cnty. 2015) (“It is well settled that a party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal discovery provisions of the CPLR when that party has waived the physician-patient privilege by affirmatively putting his or her physical or mental condition in issue.” (internal quotation and citation omitted)). SMBC Document Request 20 Plaintiff is not setting forth all communications between herself and her law firms arising out of this litigation in her privilege log. We further note that Defendant has not included such communications in its privilege log. Arrest and Conviction Records Plaintiff does not have any responsive records in her possession. Plaintiff's Selection of Documents The information you seek would breach attorney-client privilege. Plaintiff has produced responsive materials in her possession. Once again, Defendant has not similarly disclosed whether its employees, in-house counsel or your firm reviewed documents before production. There is no authority for holding Plaintiff to a higher standard. Moreover, as we previously discussed, Plaintiff still seeks the following information from Defendant. Remaining Discovery Sought by Plaintiff We need the following information immediately, but reserve the right to move for the additional information outlined in Nancy’s September 19, 2022 letter. e We note that we responded to Nancy’s September 19 letter on October 4 and produced documents consistent with our position in that letter to you on November 8. This is the first response we have received to our October 4 and November 8 letters. Defendant’s investigation into Plaintiff's complaints We will shortly be serving a corporate representative deposition notice on the investigations Defendant conducted into Plaintiff's complaints as well as the factual basis for the assertion of privilege for those investigations. ° You are free to serve whatever notice you think is proper. We do not believe discovery into the factual basis of any privilege assertion is a proper topic for a corporate representative. We will contest this at the appropriate time. SMBC reserves all rights. INDEX NO. 156852/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023 Complaints at SMBC discrimination, harassment, and retaliation from 2019 to the present. It is well established that such requests are appropriate to redress employment discrimination. Finch v. Hercules Inc., 149 F.R.D. 60, 62 (D. Del. 1993) (quoting Marshall v. Elec. Hose and Rubber Co., 68 F.R.D. 287, 295 (D. Del. 1975)). Thus, “the scope of discovery must go beyond the specifics of the plaintiff's claim.” Ri Sau Kuen Chan v. NYU Downtown Hosp., No. 03-3003, 2004 WL 1886009, at *4 (S.D.N.Y. August 23, 2004). Past allegations of discriminatory and retaliatory conduct are relevant to gauge Defendant's handling of discrimination complaints. This is especially the case because Plaintiff alleges not only disparate treatment, but also retaliation. For such purpose, relevance is not limited to the specific underlying form of discrimination complained of. See Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 197 (D.N.J. 2010) (permitting discovery of complaints involving unrelated bases of discrimination in order to determine how defendant “identifies and assesses other forms of discrimination . . . and what, if any, steps they take to remedy the other forms of discrimination they find”); see also Smith v. Ward Leonard Elec. Co., Inc., No. 00-3703, 2004 WL 1661098, at *7 (S.D.N.Y. July 23, 2004) (a plaintiff may establish a causal connection between her protected conduct and adverse employment actions by “disparate treatment of fellow employees who engaged in similar conduct”). e As we have said on multiple occasions, SMBC does not have any knowledge of any complaints involving discrimination or retaliation made against Paul Stolbof, Gus Moore, or Robin Milberg — other than Plaintiff's complaint. If needed, an Executive Director in SMBC’s Human Resources Department can sign an affidavit to this effect. This is all Plaintiff is entitled to receive in discovery. See Vuona v. Merrill Lynch & Co., No. 10 CIV. 6529 PAE, 2011 WL 5553709, at *7 (S.D.N.Y. Nov. 15, 2011). Plaintiffs cases, most outside of this jurisdiction, do not lead to a contrary result. Risk events from 2019 forward: This information is necessary for Plaintiff to establish that there were no issues with her work performance. e The voluminous discovery SMBC provided, covering over eight production and 5,000 pages, establishes that there were many issues with Plaintiffs work performance. In any event, we asked you to identify what specific Risk Event Form or Forms, limited to Plaintiff's department, Plaintiff was seeking back in early October. Plaintiff did not respond until now. Simply asserting that they are needed to establish “there were no issues with her work performance” is insufficient. Again, if Plaintiff can identify a specific and particular need for a limited number of Risk Event Forms, we will consider and respond accordingly. Top Desk Procedures for Settlement and Treasury for 2019. Please see Nancy’s letter of September 19, 2022, at page 4, second bullet point from the top. Your client should know what these documents are and should be able to easily produce same. ° Please see our October 4 response. We do not know what documents Plaintiff is referring to, even after conferring with an employee in settlements back in October. As we noted previously in our October 4 response, we assume Plaintiff is referring to documents titled Payments Release Process and Intraday Cash Reconciliation. We reviewed 245 documents titled “Intraday Cash” and, as noted in our November 8 letter, did not find any documents responsive to Plaintiff's requests. Salary and performance reviews for Emmanuel Dizon and Christina Tagglia. ° individuals are not mentioned in the Complaint and we fail to see how the performance reviews and salary information for either can possibly be relevant in the case. Should Plaintiff provide SMBC with the reasons why she thinks these individuals are relevant, we will respond accordingly. We asked for this information concerning Dizon back in October. This is the first we are hearing of Tagglia. Paul Stolbof’s personnel file. Specifically, we need his 2019 performance review. ° We will send you a letter regarding Stolbof’s personnel file. SMBC produced his 2019 performance review. SMBC-000385. Any organizational charts in which Ms. Gray appears. e We have provided Plaintiff with over a dozen organizational charts. See SMBC-000056 to SMBC-000059; SMBC- 000604 to SMBC-000612; SMBC-000614 to SMBC-000616. It is unclear what more Plaintiff could possibly need regarding the organizational units of which she was a part. INDEX NO. 156852/2020 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 05/08/2023 Defendant has not provided a certificate of completeness from Defendant confirming that responsive materials have been produced. e | am unaware of any requirement under New York law to provide a “certificate of completeness.” It is my understanding that this is a New Jersey rule. See N.J. R. 4:18-1(c). Not a New York rule. Should Plaintiff disagree, we ask that Plaintiff send us the provision of the CPLR upon which she relies along with any applicable case law, and SMBC will respond accordingly. Finally, please provide dates for the notices we served as soon as possible. . Noticing 13 depositions (with a 14th on the way as you note above) is not reasonable, not proportional to the needs of the case, and we believe is designed to harass and burden SMBC. We are willing to meet-and-confer to narrow Plaintiff's list to one that is appropriate in this case. Absent this, SMBC intends to move for protective orders for those individuals that are not centrally relevant to the claims in the case. Thanks very much. Ravi Ravi Sattiraju, Esq. SATTIRAJU & THARNEY, LLP 50 Millstone Road Building 300, Suite 202 East Windsor, NJ 08520 Office: (609) 469-2110 Direct Dial: (609) 469-2112 Mobile: (609) 235-5731 Email: rsattiraju@s-tlawfirm.com IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting marketing or recommending to another party any transaction or matter addressed herein. CONFIDENTIALITY NOTICE: This e-mail contains information that is privileged and confidential and subject to legal restrictions and penalties regarding its unauthorized disclosure or other use. You are prohibited from copying, distributing or otherwise using this information if you are not the intended recipient. If you have received this e-mail in error, please notify us immediately by return e-mail and delete this e-mail and all attachments from your system. Thank you.