Preview
FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
JOAN GRAY, :
: Index No. 156852/2020
Plaintiff, :
: IAS Part 130
- against - :
: NYSCEF
SMBC CAPITAL MARKETS, INC., :
: Motion Sequence No. 5
Defendant. :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X
AFFIRMATION OF JOHN T. DINAPOLI, ESQ. IN REPLY TO PLAINTIFF’S
OPPOSITION AND IN FURTHER SUPPORT OF SMBC’S MOTION FOR
PROTECTIVE ORDERS
I, JOHN T. DINAPOLI, ESQ., an attorney duly admitted to practice before the courts of
the State of New York, hereby affirm the following under penalty of perjury:
1. I am a member of the Bar of this Court and Counsel at the law firm of Seyfarth
Shaw LLP, attorneys for Defendant SMBC Capital Markets, Inc. (“SMBC”) in the above-
captioned action. I submit this Affirmation in reply to Plaintiff’s opposition and in further
support of SMBC’s Motion for Protective Orders. I know the facts testified to in this
Affirmation to be true based upon my own personal knowledge and a review of the
documents.
2. Plaintiff claims that SMBC failed to advise the Court that one of the reasons
for Plaintiff’s unilateral adjournment of Paul Stolbof’s deposition after five hours was
because SMBC “failed to produce relevant documents” and SMBC produced documents on
the morning of Stolbof’s deposition. Pl.’s Opp’n at 4-5, NYSCEF No. 113. Plaintiff also
argues that “privilege claims” obstructed Paul Stolbof’s deposition and “ongoing discovery
disputes” prevented the completion of his deposition. Id. This is not accurate.
1 of 5
FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023
3. Paul Stolbof retired from SMBC in January 2020, more than a year and a half
before Plaintiff filed her lawsuit. Stolbof Dep. 17:25-18:6; Compl. at 1. A true and accurate
copy of the relevant pages from Stolbof’s deposition transcript is provided as “Exhibit W.”
4. While no longer an SMBC employee, Stolbof retained certain documents from
SMBC. Relevant to this motion, these documents were: (1) email correspondence he
received wishing him well when SMBC announced his retirement; (2) his performance
evaluation containing hand-written notes; (3) and a document, dated April 11, 2017, that had
a running list of issues he was working on at SMBC. The April 11, 2017 document noted
several attachments at the end, which Stolbof did not have in his possession.
5. On April 14, 2023, SMBC produced these documents to Plaintiff. These
documents comprised four pdf files and totaled forty pages. SMBC produced these
documents in the event Stolbof mentioned them during his deposition.
6. Plaintiff noticed Stolbof’s deposition for April 18, 2023.
7. On April 17, 2023, Plaintiff’s counsel requested the attachments referenced in
the April 11, 2017 document, and another document called a “Pulse Check” referenced in a
document that SMBC produced in June 2022. A true and accurate copy of the email
Plaintiff’s counsel sent to SMBC is provided as “Exhibit X.”
8. SMBC collected approximately 5.2 million documents as part of its initial
collection of electronically stored information (currently stored on an early case assessment
platform), processed approximately 40,000 documents on its main review platform, and
reviewed close to 20,000 documents. SMBC has produced thousands of documents to
Plaintiff totaling over 7,500 pages – not including the four dozen spreadsheets it produced –
over the course of two years.
2
2 of 5
FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023
9. I located the attachments referenced in the April 11, 2017 document on the
main review platform. SMBC produced these documents on the same day of Plaintiff’s
request, April 17, 2023.
10. Separately, SMBC searched its internal database for the “Pulse Check”
referenced in a document SMBC produced to Plaintiff on June 9, 2022. Despite producing
the document that referenced a “Pulse Check” more than ten months earlier, this was the first
time Plaintiff’s counsel raised any concerns or asked any questions about it. SMBC
produced this document to Plaintiff on the morning of April 18, 2023, before Stolbof’s
deposition started. This document was one page long.
11. Plaintiff claims this somehow obstructed the discovery process. Plaintiff is
wrong.
12. During Stolbof’s deposition, Plaintiff’s counsel asked him whether he was
“ever told what the conclusion of the investigation was conducted by [SMBC in-house
attorney].” SMBC objected and instructed Stolbof not to answer. DiNapoli Rep. Aff. Ex.
W, Stolbof Dep. 161:21-163:8.
13. This was the only question regarding the investigation that SMBC’s counsel
instructed Stolbof not to answer.
14. Plaintiff’s counsel stopped Stolbof’s deposition at 4:03 p.m., which started at
10 a.m., stating “[b]ased on where we are with discovery and the privilege issues, we’re
going to be needing [Stolbof] back” and “[w]e also have to follow up on some gaps that are
in discovery, given some late production, so.” Id. at 187:12-16. Plaintiff’s counsel
explained that he also had a “conflict where I have to leave shortly” and thought “10 to 4 is a
very – considered a full day by most courts I practice in.” Id. at 187:22-23; 189:4-6.
3
3 of 5
FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023
15. Plaintiff’s counsel did not seek to postpone Stolbof’s deposition beforehand,
nor did Plaintiff’s counsel inform SMBC he intended to depose Stolbof for more than one
day.
Dated: New York, New York
May 22, 2023 Respectfully submitted,
SEYFARTH SHAW LLP
By: /s/ John T. DiNapoli
John T. DiNapoli
John DiNapoli, Esq.
620 Eighth Avenue
New York, NY 10018
Tel: (212) 218-3355
jdinapoli@seyfarth.com
Lynn Kappelman, Esq.
Seaport East
Two Seaport Lane, Suite 300
Boston, MA 02210-2028
Tel: (617) 946-4888
lkappelman@seyfarth.com
Attorneys for Defendant
4
4 of 5
FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023
CERTIFICATION OF WORD COUNT
I hereby certify that the word count of this affirmation complies with the word limits of
22 New York Codes, Rules and Regulations § 202.8-b. According to the word-processing system
used to prepare this affirmation, the total word count for all printed text exclusive of the material
omitted under 22 N.Y.C.R.R. § 202.8-b(b) is 762 words.
Dated: New York, New York
May 22, 2023 Respectfully submitted,
SEYFARTH SHAW LLP
By: /s/ John T. DiNapoli
John T. DiNapoli
John DiNapoli, Esq.
620 Eighth Avenue
New York, NY 10018
Tel: (212) 218-3355
jdinapoli@seyfarth.com
Attorneys for Defendant
95175628v.3
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X JOAN GRAY, : : Index No. 156852/2020 Plaintiff, : : IAS Part 130 - against - : : NYSCEF SMBC CAPITAL MARKETS, INC., : : Motion Sequence No. 5 Defendant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X AFFIRMATION OF JOHN T. DINAPOLI, ESQ. IN REPLY TO PLAINTIFF’S OPPOSITION AND IN FURTHER SUPPORT OF SMBC’S MOTION FOR PROTECTIVE ORDERS I, JOHN T. DINAPOLI, ESQ., an attorney duly admitted to practice before the courts of the State of New York, hereby affirm the following under penalty of perjury: 1. I am a member of the Bar of this Court and Counsel at the law firm of Seyfarth Shaw LLP, attorneys for Defendant SMBC Capital Markets, Inc. (“SMBC”) in the above- captioned action. I submit this Affirmation in reply to Plaintiff’s opposition and in further support of SMBC’s Motion for Protective Orders. I know the facts testified to in this Affirmation to be true based upon my own personal knowledge and a review of the documents. 2. Plaintiff claims that SMBC failed to advise the Court that one of the reasons for Plaintiff’s unilateral adjournment of Paul Stolbof’s deposition after five hours was because SMBC “failed to produce relevant documents” and SMBC produced documents on the morning of Stolbof’s deposition. Pl.’s Opp’n at 4-5, NYSCEF No. 113. Plaintiff also argues that “privilege claims” obstructed Paul Stolbof’s deposition and “ongoing discovery disputes” prevented the completion of his deposition. Id. This is not accurate. 1 of 5 FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023 3. Paul Stolbof retired from SMBC in January 2020, more than a year and a half before Plaintiff filed her lawsuit. Stolbof Dep. 17:25-18:6; Compl. at 1. A true and accurate copy of the relevant pages from Stolbof’s deposition transcript is provided as “Exhibit W.” 4. While no longer an SMBC employee, Stolbof retained certain documents from SMBC. Relevant to this motion, these documents were: (1) email correspondence he received wishing him well when SMBC announced his retirement; (2) his performance evaluation containing hand-written notes; (3) and a document, dated April 11, 2017, that had a running list of issues he was working on at SMBC. The April 11, 2017 document noted several attachments at the end, which Stolbof did not have in his possession. 5. On April 14, 2023, SMBC produced these documents to Plaintiff. These documents comprised four pdf files and totaled forty pages. SMBC produced these documents in the event Stolbof mentioned them during his deposition. 6. Plaintiff noticed Stolbof’s deposition for April 18, 2023. 7. On April 17, 2023, Plaintiff’s counsel requested the attachments referenced in the April 11, 2017 document, and another document called a “Pulse Check” referenced in a document that SMBC produced in June 2022. A true and accurate copy of the email Plaintiff’s counsel sent to SMBC is provided as “Exhibit X.” 8. SMBC collected approximately 5.2 million documents as part of its initial collection of electronically stored information (currently stored on an early case assessment platform), processed approximately 40,000 documents on its main review platform, and reviewed close to 20,000 documents. SMBC has produced thousands of documents to Plaintiff totaling over 7,500 pages – not including the four dozen spreadsheets it produced – over the course of two years. 2 2 of 5 FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023 9. I located the attachments referenced in the April 11, 2017 document on the main review platform. SMBC produced these documents on the same day of Plaintiff’s request, April 17, 2023. 10. Separately, SMBC searched its internal database for the “Pulse Check” referenced in a document SMBC produced to Plaintiff on June 9, 2022. Despite producing the document that referenced a “Pulse Check” more than ten months earlier, this was the first time Plaintiff’s counsel raised any concerns or asked any questions about it. SMBC produced this document to Plaintiff on the morning of April 18, 2023, before Stolbof’s deposition started. This document was one page long. 11. Plaintiff claims this somehow obstructed the discovery process. Plaintiff is wrong. 12. During Stolbof’s deposition, Plaintiff’s counsel asked him whether he was “ever told what the conclusion of the investigation was conducted by [SMBC in-house attorney].” SMBC objected and instructed Stolbof not to answer. DiNapoli Rep. Aff. Ex. W, Stolbof Dep. 161:21-163:8. 13. This was the only question regarding the investigation that SMBC’s counsel instructed Stolbof not to answer. 14. Plaintiff’s counsel stopped Stolbof’s deposition at 4:03 p.m., which started at 10 a.m., stating “[b]ased on where we are with discovery and the privilege issues, we’re going to be needing [Stolbof] back” and “[w]e also have to follow up on some gaps that are in discovery, given some late production, so.” Id. at 187:12-16. Plaintiff’s counsel explained that he also had a “conflict where I have to leave shortly” and thought “10 to 4 is a very – considered a full day by most courts I practice in.” Id. at 187:22-23; 189:4-6. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023 15. Plaintiff’s counsel did not seek to postpone Stolbof’s deposition beforehand, nor did Plaintiff’s counsel inform SMBC he intended to depose Stolbof for more than one day. Dated: New York, New York May 22, 2023 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ John T. DiNapoli John T. DiNapoli John DiNapoli, Esq. 620 Eighth Avenue New York, NY 10018 Tel: (212) 218-3355 jdinapoli@seyfarth.com Lynn Kappelman, Esq. Seaport East Two Seaport Lane, Suite 300 Boston, MA 02210-2028 Tel: (617) 946-4888 lkappelman@seyfarth.com Attorneys for Defendant 4 4 of 5 FILED: NEW YORK COUNTY CLERK 05/22/2023 04:12 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/22/2023 CERTIFICATION OF WORD COUNT I hereby certify that the word count of this affirmation complies with the word limits of 22 New York Codes, Rules and Regulations § 202.8-b. According to the word-processing system used to prepare this affirmation, the total word count for all printed text exclusive of the material omitted under 22 N.Y.C.R.R. § 202.8-b(b) is 762 words. Dated: New York, New York May 22, 2023 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ John T. DiNapoli John T. DiNapoli John DiNapoli, Esq. 620 Eighth Avenue New York, NY 10018 Tel: (212) 218-3355 jdinapoli@seyfarth.com Attorneys for Defendant 95175628v.3 5 of 5