Preview
FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017
NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ROBERT HARRIS, Index No.: 650175/2017
Plaintiff,
- against-
INTIMO INC., NATHAN NATHAN, individually, TOMMY
NATHAN, individually, MORIS ZILKHA, individually, PRESTIGE
EMPLOYEE ADMINISTRATORS, INC. a/k/a PRESTIGE
EMPLOYEE ADMINISTRATORS, PRESTIGE EMPLOYEE
ADMINSTRATORS II, INC. a/k/a PRESTIGE EMPLOYEE
ANDMINISTRATORS and JOHN DOES 1-10, and ABC CORPS.
1-10, fictitious namesfor persons or entities whose present roles and
identities are
unknown,
Defendants.
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MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S
SECOND MOTION TO COMPEL DISCOVERY
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Table of Contents
Preliminary Statement. . . . . . . . . . . . . . .. . . . . . . .. . . . . . .. . . . .. . .. . . .. . . .. . ..
. .1
Argument . . . . .. . . . . . ... ... . . . . . . .. . . . .. . . .. . . . .. . . . .. . . .. . . . . .. . . .. . . .. .1
I. PLAINTIFF HAS WAIVED ANY FURTHER DOCUMENT
DISCOVERY. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . .. . . . . . .
1
II. PLAINTIFF’S ASSERTION THAT HE REQUIRES FURTHER
DOCUMENTS ON THIS ISSUE OF DAMAGES IS BASELESS.. 2
III. THE DEMANDS PURSUANT TO WHICH PLAINTIFF SEEKS
FURTHER DISCOVERY ARE VAGUE, OVERBROAD AND
UNDULY BURDENSOME.. . . . . . . . . .. . . . . . . . .. . . . . .. . . . . .. . .3
Conclusion . . . . . . . . . . .. . . . . . . . .. . . . . .. . . . .. ..
.. . .. . . .. . . .. . . . .. . . .. . .. . ... .4
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Preliminary Statement
Having to date received over 330,000 pages of discovery from the Intimo Defendants 1 in
response to a combined 67 Document Demands and 58 Interrogatories with subparts, Plaintiff
still seeks to compel even further production and impose even further burdens on the Intimo
Defendants at the eleventh hour. In what has become a pattern, Plaintiff has served overbroad,
scatter-shot demands designed more to impose the maximum possible burden on the Intimo
Defendants rather than to illicit productive evidence. Plaintiff makes these further demands,
notwithstanding this Courts Order of November 21, 2019, explicitly stating that other than
certain discrete issues reserved for decision on Plaintiffs’ previous motion to compel, “All other
discovery complete/waived”. As to the Intimo Defendants, Plaintiff’s latest motion to compel
further production in response should be denied for the following reasons: (1) Plaintiff has
waived any right to further document production; (2) the Plaintiff’s assertion that he requires
further documents on damages at this late date is baseless; and (3) the demands for which he
seeks further production a vague, overly broad and unduly burdensome.
Argument
I. PLAINTIFF HAS WAIVED ANY FURTHER DOCUMENT DISCOVERY
Plaintiff has already had the opportunity to conduct extensive document discovery and has
received comprehensive responses. This Court entered a Preliminary Conference Order on
December 6, 2018 providing that Document Demands would be served no later than January 7,
2019 [Doc # 22]. Both sides (Prestige Defendants had not yet been joined) timely served their
demands. At a further Compliance Conference, the Note of Issue date was set for September 30,
1
The “Intimo Defendants” are Intimo, Inc., Nathan Nathan, Tommy Nathan and Moris Zilkha.
1
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2019 [Doc # 25], which deadline was at a subsequent conference, (following Prestige Defendants
joinder) was extended to December 31, 2019 and marked final [Doc #49].
Plaintiffs’ initial Document Demands contained 62 extremely broad demands, several of
which were patently inappropriate (Copy attached as Marcus Affirm. Ex A). In addition,
Plaintiff served Interrogatories with 58 questions many of which contain subparts (Marcus
Affirm Ex. B). Unsurprisingly, broad and burdensome nature of Plaintiffs approach to
discovery, several disputes arose leading Plaintiff to file his first Motion to Compel [Doc ## 77-
103]. A conference was held on November 21, 2019 regarding Plaintiff’s first Motion to
Compel. Prior to that conference Plaintiff had received over 41,000 pages of document
discovery. With the exception of three narrowly defined issues all disputes, regarding the
Plaintiff’s first Motion to Compel were resolved at a conference held on November 21, 2019
[Doc # 106] (Marcus Affirm Ex. C). The stipulation entered into and so ordered by the court on
that date explicitly provided that “this resolves all outstanding discovery issues except those
expressly reserved for decision…” and further that “[a]ll other discovery complete/waived.” 2
Notwithstanding, the above directives that document discovery had been completed, Plaintiff
served a Third Request for the Production of Documents (Marcus Affirm Ex. D) on December 5,
2019. The Intimo Defendants timely responded to these demands (Marcus Affirm Ex. E) and
provided approximately 290,000 additional pages of emails. Nonetheless Plaintiff again moved
to compel further production.
Plaintiff claims this further document discovery is necessary for him to obtain documents
allowing him to calculate commissions he is allegedly owed (Demand 1& 2). He further seeks
certain text message discovery (Demand #3). As to text messages, Demands 53-55 of Plaintiffs
2
By Decision and Order dated January 27, 2020 this Court denied Plaintiffs’ first Motion to Compel [Doc #207].
2
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first document demands (Marcus Affirm Ex. A, p.16) contain virtually identical demands as
Demand number 4 in the Third Request for Production (Marcus Exhibit D). As such, further
discovery on this issue was explicitly waived in the courts order of November 21, 2019 [Doc
#106].
As to further discovery regarding calculation of damages, this is an issue that goes to the
very heart of the case. There is no reason that these demands could not have been included in
Plaintiffs original document demand and should have been so included. Defendant did in fact
produce records in the original production which is also responsive to the demands that are the
subject of this latest Motion to Compel (Bates # Def 290 – 780). Therefore, Plaintiff also agreed
discovery was complete on this issue on November 21, 2018 and waived further discovery.
II. PLAINTIFF’S ASSERTION THAT HE REQUIRES FURTHER DOCUMENTS
ON THIS ISSUE OF DAMAGES IS BASELESS.
Leaving aside that Plaintiff has already had more than sufficient time to seek discovery on
the issue of damages, the assertion made in his memorandum of law that Defendant put the
accuracy of his own documents at issue in his deposition is false. As no transcript pages were
attached to the present motion, Defendants can only speculate as to the testimony to which
Plaintiff is referring. However, review of the exhibit list (Marcus Affirm. Ex. F) from Mr.
Nathan Nathan’s deposition reveals that all the documents used to question the witness bore
Plaintiff’s Bates stamp. These were documents taken by (perhaps improperly) by Plaintiff when
he was terminated. Plaintiff must have known that he himself could not verify the accuracy of
these records, and cannot blame the Defendants if he misappropriated inaccurate documents.
Plaintiff’s counsel failed to question Nathan Nathan at deposition on any of the documents
provided by Defendants (including Bates # 290-780) and cannot now complain at this late date
that he needs further documentation when he failed to explore the significance of the material
3
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already provided. On there face they are labelled “Salesman Commission Report” and cover the
years 2010-2013. See, Cerasaro v. Cerasaro, 9 A.D.3d 663, 781 N.Y.S.2d 375 (3rd Dep’t 2005)(“ At
this point in the litigation, plaintiff's speculative assertion that the corporate financial records do not
reflect the total business revenue is not an adequate premise upon which to base the requested
discovery.”)
III. THE DEMANDS PURSUANT TO WHICH PLAINTIFF SEEKS FURTHER
DISCOVERY ARE VAGUE, OVERBROAD AND UNDULY BURDENSOME.
“CPLR 3120 requires ‘specifically designated documents or any things ... specified with
reasonable particularity in the notice ....” The First Department has held that “attempts to
designate documents by use of the alternate phrases, ‘All’, ‘All other’ or ‘Any and all’, renders a
request or notice for production under CPLR 3120 ‘palpably improper’ ....’” In re Citibank, N.A.,
100 A.D.2d 784,, 784, 474 N.Y.S.2d 485 (1st Dep’t 1984)(quoting City of New York v.
Friedberg & Assoc., 62 A.D.2d 407, 410, 404 N.Y.S.2d 868 (1st Dep’t 1978)). “[T]he cases have
been scrupulous in their adherence to the requirement of the statute that the notice specify the
things sought with ‘reasonable particularity’, and it is simply not open to challenge that the
burden of specification is on the requesting party.” Mendelowitz v. Xerox Corp., 169 A.D.2d
300, 304, 573 N.Y.S.2d 548 (1st Dep’t 1991); see also, Taji Communications, Inc. v. Bronxville
Towers Apartments Corp., 48 A.D.3d 551, 849 N.Y.S.2d 890 (2nd Dep’t 2008). “Under our
discovery statutes and case law, competing interests must always be balanced; the need for
discovery must be weighed against any special burden to be borne by the opposing
party” O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 529, 528 N.Y.S.2d 1, 523 N.E.2d 277
(1988), rearg. denied 72 N.Y.2d 910, 532 N.Y.S.2d 758, 528 N.E.2d 1231 (1988).
4
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Defendants stand by the objections stated in their Response to the Third Document Request
(Marcus Affirm. Ex E). Plaintiffs is essentially demanding all documents regarding sales made
and money received by certain large volume customers over a 4 year period. The demands are
not tied to sales made by the Plaintiff for which he alleges he is entitled to commissions. These
are financial records which are confidential in nature and go to the very heart of Defendants’
business. The time and effort in pouring through records is potentially vast and a significant
burden to a small business that has already expended significant manpower providing over
330,000 pages of discovery to Plaintiffs other scattergun discovery requests. To impose this
additional obligation on Defendants at this late date is patently unfair, particularly in light of
Plaintiff’s failure to review and question Defendants on documents he has already been
provided.
Conclusion
For the foregoing reasons the Intimo Defendants request that the relief requested in
Plaintiff’s second Motion to Compel, as to the Intimo Defendants, be denied in its entirety.
Dated: Scarsdale, New York
February 11, 2020
Respectfully submitted,
________________________
Seth Marcus, Esq.
Law Offices of Seth L. Marcus, Esq.
Attorneys for Defedants
670 White Plains Rd., Penthouse
Scarsdale, New York 10583
(212) 686-2555
seth@slmarcuslaw.com
5
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Preview
FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------------X ROBERT HARRIS, Index No.: 650175/2017 Plaintiff, - against- INTIMO INC., NATHAN NATHAN, individually, TOMMY NATHAN, individually, MORIS ZILKHA, individually, PRESTIGE EMPLOYEE ADMINISTRATORS, INC. a/k/a PRESTIGE EMPLOYEE ADMINISTRATORS, PRESTIGE EMPLOYEE ADMINSTRATORS II, INC. a/k/a PRESTIGE EMPLOYEE ANDMINISTRATORS and JOHN DOES 1-10, and ABC CORPS. 1-10, fictitious namesfor persons or entities whose present roles and identities are unknown, Defendants. ---------------------------------------------------------------------------------X MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S SECOND MOTION TO COMPEL DISCOVERY 1 of 7 FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 Table of Contents Preliminary Statement. . . . . . . . . . . . . . .. . . . . . . .. . . . . . .. . . . .. . .. . . .. . . .. . .. . .1 Argument . . . . .. . . . . . ... ... . . . . . . .. . . . .. . . .. . . . .. . . . .. . . .. . . . . .. . . .. . . .. .1 I. PLAINTIFF HAS WAIVED ANY FURTHER DOCUMENT DISCOVERY. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . .. . . . . . . 1 II. PLAINTIFF’S ASSERTION THAT HE REQUIRES FURTHER DOCUMENTS ON THIS ISSUE OF DAMAGES IS BASELESS.. 2 III. THE DEMANDS PURSUANT TO WHICH PLAINTIFF SEEKS FURTHER DISCOVERY ARE VAGUE, OVERBROAD AND UNDULY BURDENSOME.. . . . . . . . . .. . . . . . . . .. . . . . .. . . . . .. . .3 Conclusion . . . . . . . . . . .. . . . . . . . .. . . . . .. . . . .. .. .. . .. . . .. . . .. . . . .. . . .. . .. . ... .4 2 of 7 FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 Preliminary Statement Having to date received over 330,000 pages of discovery from the Intimo Defendants 1 in response to a combined 67 Document Demands and 58 Interrogatories with subparts, Plaintiff still seeks to compel even further production and impose even further burdens on the Intimo Defendants at the eleventh hour. In what has become a pattern, Plaintiff has served overbroad, scatter-shot demands designed more to impose the maximum possible burden on the Intimo Defendants rather than to illicit productive evidence. Plaintiff makes these further demands, notwithstanding this Courts Order of November 21, 2019, explicitly stating that other than certain discrete issues reserved for decision on Plaintiffs’ previous motion to compel, “All other discovery complete/waived”. As to the Intimo Defendants, Plaintiff’s latest motion to compel further production in response should be denied for the following reasons: (1) Plaintiff has waived any right to further document production; (2) the Plaintiff’s assertion that he requires further documents on damages at this late date is baseless; and (3) the demands for which he seeks further production a vague, overly broad and unduly burdensome. Argument I. PLAINTIFF HAS WAIVED ANY FURTHER DOCUMENT DISCOVERY Plaintiff has already had the opportunity to conduct extensive document discovery and has received comprehensive responses. This Court entered a Preliminary Conference Order on December 6, 2018 providing that Document Demands would be served no later than January 7, 2019 [Doc # 22]. Both sides (Prestige Defendants had not yet been joined) timely served their demands. At a further Compliance Conference, the Note of Issue date was set for September 30, 1 The “Intimo Defendants” are Intimo, Inc., Nathan Nathan, Tommy Nathan and Moris Zilkha. 1 3 of 7 FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 2019 [Doc # 25], which deadline was at a subsequent conference, (following Prestige Defendants joinder) was extended to December 31, 2019 and marked final [Doc #49]. Plaintiffs’ initial Document Demands contained 62 extremely broad demands, several of which were patently inappropriate (Copy attached as Marcus Affirm. Ex A). In addition, Plaintiff served Interrogatories with 58 questions many of which contain subparts (Marcus Affirm Ex. B). Unsurprisingly, broad and burdensome nature of Plaintiffs approach to discovery, several disputes arose leading Plaintiff to file his first Motion to Compel [Doc ## 77- 103]. A conference was held on November 21, 2019 regarding Plaintiff’s first Motion to Compel. Prior to that conference Plaintiff had received over 41,000 pages of document discovery. With the exception of three narrowly defined issues all disputes, regarding the Plaintiff’s first Motion to Compel were resolved at a conference held on November 21, 2019 [Doc # 106] (Marcus Affirm Ex. C). The stipulation entered into and so ordered by the court on that date explicitly provided that “this resolves all outstanding discovery issues except those expressly reserved for decision…” and further that “[a]ll other discovery complete/waived.” 2 Notwithstanding, the above directives that document discovery had been completed, Plaintiff served a Third Request for the Production of Documents (Marcus Affirm Ex. D) on December 5, 2019. The Intimo Defendants timely responded to these demands (Marcus Affirm Ex. E) and provided approximately 290,000 additional pages of emails. Nonetheless Plaintiff again moved to compel further production. Plaintiff claims this further document discovery is necessary for him to obtain documents allowing him to calculate commissions he is allegedly owed (Demand 1& 2). He further seeks certain text message discovery (Demand #3). As to text messages, Demands 53-55 of Plaintiffs 2 By Decision and Order dated January 27, 2020 this Court denied Plaintiffs’ first Motion to Compel [Doc #207]. 2 4 of 7 FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 first document demands (Marcus Affirm Ex. A, p.16) contain virtually identical demands as Demand number 4 in the Third Request for Production (Marcus Exhibit D). As such, further discovery on this issue was explicitly waived in the courts order of November 21, 2019 [Doc #106]. As to further discovery regarding calculation of damages, this is an issue that goes to the very heart of the case. There is no reason that these demands could not have been included in Plaintiffs original document demand and should have been so included. Defendant did in fact produce records in the original production which is also responsive to the demands that are the subject of this latest Motion to Compel (Bates # Def 290 – 780). Therefore, Plaintiff also agreed discovery was complete on this issue on November 21, 2018 and waived further discovery. II. PLAINTIFF’S ASSERTION THAT HE REQUIRES FURTHER DOCUMENTS ON THIS ISSUE OF DAMAGES IS BASELESS. Leaving aside that Plaintiff has already had more than sufficient time to seek discovery on the issue of damages, the assertion made in his memorandum of law that Defendant put the accuracy of his own documents at issue in his deposition is false. As no transcript pages were attached to the present motion, Defendants can only speculate as to the testimony to which Plaintiff is referring. However, review of the exhibit list (Marcus Affirm. Ex. F) from Mr. Nathan Nathan’s deposition reveals that all the documents used to question the witness bore Plaintiff’s Bates stamp. These were documents taken by (perhaps improperly) by Plaintiff when he was terminated. Plaintiff must have known that he himself could not verify the accuracy of these records, and cannot blame the Defendants if he misappropriated inaccurate documents. Plaintiff’s counsel failed to question Nathan Nathan at deposition on any of the documents provided by Defendants (including Bates # 290-780) and cannot now complain at this late date that he needs further documentation when he failed to explore the significance of the material 3 5 of 7 FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 already provided. On there face they are labelled “Salesman Commission Report” and cover the years 2010-2013. See, Cerasaro v. Cerasaro, 9 A.D.3d 663, 781 N.Y.S.2d 375 (3rd Dep’t 2005)(“ At this point in the litigation, plaintiff's speculative assertion that the corporate financial records do not reflect the total business revenue is not an adequate premise upon which to base the requested discovery.”) III. THE DEMANDS PURSUANT TO WHICH PLAINTIFF SEEKS FURTHER DISCOVERY ARE VAGUE, OVERBROAD AND UNDULY BURDENSOME. “CPLR 3120 requires ‘specifically designated documents or any things ... specified with reasonable particularity in the notice ....” The First Department has held that “attempts to designate documents by use of the alternate phrases, ‘All’, ‘All other’ or ‘Any and all’, renders a request or notice for production under CPLR 3120 ‘palpably improper’ ....’” In re Citibank, N.A., 100 A.D.2d 784,, 784, 474 N.Y.S.2d 485 (1st Dep’t 1984)(quoting City of New York v. Friedberg & Assoc., 62 A.D.2d 407, 410, 404 N.Y.S.2d 868 (1st Dep’t 1978)). “[T]he cases have been scrupulous in their adherence to the requirement of the statute that the notice specify the things sought with ‘reasonable particularity’, and it is simply not open to challenge that the burden of specification is on the requesting party.” Mendelowitz v. Xerox Corp., 169 A.D.2d 300, 304, 573 N.Y.S.2d 548 (1st Dep’t 1991); see also, Taji Communications, Inc. v. Bronxville Towers Apartments Corp., 48 A.D.3d 551, 849 N.Y.S.2d 890 (2nd Dep’t 2008). “Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party” O'Neill v. Oakgrove Constr., 71 N.Y.2d 521, 529, 528 N.Y.S.2d 1, 523 N.E.2d 277 (1988), rearg. denied 72 N.Y.2d 910, 532 N.Y.S.2d 758, 528 N.E.2d 1231 (1988). 4 6 of 7 FILED: NEW YORK COUNTY CLERK 02/11/2020 06:56 PM INDEX NO. 650175/2017 NYSCEF DOC. NO. 233 RECEIVED NYSCEF: 02/11/2020 Defendants stand by the objections stated in their Response to the Third Document Request (Marcus Affirm. Ex E). Plaintiffs is essentially demanding all documents regarding sales made and money received by certain large volume customers over a 4 year period. The demands are not tied to sales made by the Plaintiff for which he alleges he is entitled to commissions. These are financial records which are confidential in nature and go to the very heart of Defendants’ business. The time and effort in pouring through records is potentially vast and a significant burden to a small business that has already expended significant manpower providing over 330,000 pages of discovery to Plaintiffs other scattergun discovery requests. To impose this additional obligation on Defendants at this late date is patently unfair, particularly in light of Plaintiff’s failure to review and question Defendants on documents he has already been provided. Conclusion For the foregoing reasons the Intimo Defendants request that the relief requested in Plaintiff’s second Motion to Compel, as to the Intimo Defendants, be denied in its entirety. Dated: Scarsdale, New York February 11, 2020 Respectfully submitted, ________________________ Seth Marcus, Esq. Law Offices of Seth L. Marcus, Esq. Attorneys for Defedants 670 White Plains Rd., Penthouse Scarsdale, New York 10583 (212) 686-2555 seth@slmarcuslaw.com 5 7 of 7