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DOCKET NO.: FST-CV20-6046192-S SUPERIOR COURT
J.D. STAMFORD/NORWALK
SHIPMAN ASSOCIATES, LLC D/B/A AT STAMFORD
THEBALM,
Plaintiff,
v.
WHITE & CASE LLP,
Defendant. AUGUST 10, 2020
----------------------------------------------------
WHITE & CASE LLP’s REPLY IN FURTHER SUPPORT OF ITS
MOTION FOR PROTECTIVE ORDER
In the first page of its Objection, Plaintiff Shipman Associates, LLC d/b/a theBalm
(“theBalm”) admits that the parties’ discovery dispute is “moot as the Plaintiff has already filed
its opposition to the Motion to Dismiss.” Accordingly, the Court no longer needs to decide the
issues raised in the Motion for Protective Order and can instead turn to White & Case’s Motion
to Dismiss, Dkt. No. 107.00.
Because theBalm nonetheless filed a brief that grossly distorts the record related to the
Motion for Protective Order, and also inappropriately suggests that the pending Motion to
Dismiss should be denied without consideration of its merits, White & Case further responds
below to the extent necessary or helpful to the Court.
I. Motion for Protective Order
At the time it was filed on June 29, the Motion for Protective Order was necessary to stop
the abusive and burdensome discovery sought by theBalm, purportedly for purposes of opposing
White & Case’s pending Motion to Dismiss for Forum Non Conveniens. Beforehand, theBalm
had repeatedly indicated to White & Case and this Court that it was seeking discovery on just
two facts that were entirely within its own principals’ knowledge: first, that no principals of
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theBalm met with White & Case in New York and, second, that White & Case traveled to
Connecticut to meet with theBalm’s principals. See Mot. For Prot. Order Ex. 2 (E-mail from E.
Grayson to K. Smith); Dkt. No. 113. at 3-4. TheBalm nonetheless inexplicably served an
onerous deposition notice with accompanying document requests that extended well beyond
these limited topics to include merits-based discovery that was unrelated to the forum non
conveniens issues. See Mem. in Support of Mot. For Prot. Order, Dkt. 116.00, at 4 (“Mem.”).
Contrary to the false narrative spun by theBalm’s Objection, White & Case did not ignore
the deposition notice, and it attempted to confer with theBalm about what theBalm claimed it
needed to oppose the Motion to Dismiss, even proposing stipulations that would have resolved
the two factual issues it had identified. Tellingly, theBalm ignored those efforts, and filed its
Opposition to the Motion to Dismiss on July 6, replete with voluminous exhibits and multiple
affidavits addressing the very points upon which it had claimed it needed discovery. Id.
Accordingly, White & Case reached out to theBalm the next day, July 7, asking if it
agreed that the filing of its Opposition “moots our discovery dispute and pending motion for
protective order?” Ex. 4. TheBalm responded that it was not sure and asked for a few days to
think about it. On July 15, theBalm stated that it would be filing a “short opposition” to the
Motion for Protective Order. TheBalm ultimately filed its Objection on August 7, expressly
conceding that the discovery dispute was “moot as the Plaintiff has already filed its opposition to
the Motion to Dismiss.” Obj., Dkt. No. 124.00. Notably, theBalm wasted weeks before
communicating that conclusion in a 3-page “Objection” that is of no consequence.1
1
TheBalm’s Objection misleadingly states that “there was no need for Defendant to have claimed the Motion for a
Protective Order to the Short Calendar to obtain a post facto advisory ruling on its refusal to appear for the
deposition. (We asked Defendant to mark the Motion off.).” Obj. at 3. As White & Case said on July 7 and
repeatedly thereafter, it agrees that the parties’ discovery dispute was mooted on July 6 when theBalm filed its
Opposition to the Motion to Dismiss. However, theBalm refused to agree that the dispute was moot until it filed its
Objection on August 7. The only time theBalm asked White & Case to mark off the motion was on August 6 to
2
II. Motion To Dismiss
Despite conceding that the discovery dispute is moot, theBalm inappropriately uses its
Objection to argue that, because Mr. Brahmst did not appear for his deposition, the Court should
impose an extreme and wholly unjustified sanction of denying the Motion to Dismiss without
considering its merits. Obj. at *1. Even if theBalm had properly moved for any such discovery
sanction, which it did not, it is incorrect.
Again, White & Case never ignored the deposition notice. It attempted in good faith to
confer with theBalm as early as June 10 about what information it really needed,2 proposed an
alternative to the deposition and document requests in the form of stipulations,3 and then moved
for relief from the Court when those efforts were unsuccessful—all before the unilaterally
chosen deposition date that theBalm attempted to impose on White & Case without any
obtain even more time to file its Objection, suggesting the opposite view, i.e., that there was still a dispute that
needed resolution.
2
As for the necessity of the deposition, it is telling that theBalm filed a voluminous opposition without it and now
agrees the issue is moot. Attorney Brahmst’s deposition was never necessary. Indeed, theBalm already deposed
him for a full 8 hours in the pending case before Justice Bannon. The notice of his deposition in this case was a
poorly disguised second bite at the apple, and only underscores the importance of White & Case’s pending motion to
dismiss for purposes, among others, of avoiding burdensome, unnecessary, and duplicative discovery.
3
TheBalm itself had indicated a willingness to entertain stipulations on the two topics originally identified, asking
White & Case on June 10 whether it would “agree to stipulate that the parties never had a business meeting in New
York, and that they did have business meetings in Connecticut.” Ex. 5. Stipulations were an obvious solution given
the limited scope of discovery needed and the spirit of limited discovery on such non-merits based issues, see, e.g.,
Durkin v. Invatec, Inc., 258 Conn. 454, 472 (2001) (requiring “extensive investigation would defeat the purpose” of
a forum non conveniens motion to dismiss). Consistent with theBalm’s suggestion, White & Case proposed
stipulations of fact addressing the two issues only a few days later.
TheBalm completely ignored them thereafter
and in its Objection now tries to justify that unreasonable refusal to confer by arguing that the stipulations “were so
slanted towards the Defendants that it was unsignable.” Obj. at *2.That is the first time theBalm communicated
this position to White & Case, and, if that is how it viewed them, the reasonable response would have been to
negotiate the language of the stipulations, not to ignore them altogether.
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meaningful conferral.4 White & Case acted in good faith,5 and theBalm cites no law supporting
the notion that a past discovery dispute that theBalm now admits is moot should somehow result
in the denial of the Motion to Dismiss without consideration of its merits. See Opp. at *1.
III. Conclusion
For the foregoing reasons, the Court now does not need to decide the Motion for
Protective Order. Should it become necessary for any reason, the Court grant the Motion for the
reasons stated in the original moving papers and this reply.
Defendant,
WHITE & CASE LLP
/s/ Kevin M. Smith
Kevin M. Smith
Robyn E. Gallagher
WIGGIN AND DANA LLP
Juris No. 067700
One Century Tower
265 Church Street, P.O. Box 1832
New Haven, CT 06508-1832
Tel: (203) 498-4400
Fax: (203) 782-2889
ksmith@wiggin.com
rgallagher@wiggin.com
4
After all these efforts and well before theBalm’s Opposition was due on July 6, White & Case informed theBalm
on June 25 that Attorney Brahmst would not be appearing for his deposition, and White & Case moved for a
protective order on June 29. TheBalm therefore had ample time to either seek an additional extension of time for
opposing the Motion to Dismiss, or to otherwise seek to compel discovery before opposing the Motion to Dismiss.
Tellingly, it did neither.
5
Moreover, contrary to theBalm’s revisionist history, when theBalm did have informal factual questions for
purposes of forum non conveniens, White & Case answered promptly. On June 26, for example, theBalm asked for
the personal addresses of White & Case attorneys without disclosing why it wanted that information. Concerned
with providing personal addresses, White & Case responded that the individuals could be contacted through counsel.
On June 29, theBalm clarified that it wanted the information to calculate “travel time to the Courthouse” for
purposes of its Opposition to the Motion to Dismiss. On July 2, White & Case provided the mileages. TheBalm
followed up by asking for mileage calculations to the New York courthouse as well, and White & Case responded
with the requested information the same day. TheBalm’s attempt to characterize White & Case as anything but
forthcoming and responsive is utterly and completely false.
4
CERTIFICATION
I hereby certify that, on August 10, 2020, a copy of the foregoing was delivered via
electronic mail to all counsel of record as follows:
Eric D. Grayson, Esq.
Grayson & Associates, P.C.
175 West Putnam Avenue, Second Floor
Greenwich, Connecticut 06830
ericgrayson@graysonlaw.com
Andrew Hayes, Esq.
43 West 43rd St., Suite 195
New York, NY 10017
ahayes@andrewhayes.net
/s/ Kevin M. Smith
Kevin M. Smith
88888888\1967\4840-2127-4567.v2
5
EXHIBIT 4
Smith, Kevin
From: Smith, Kevin
Sent: Wednesday, July 15, 2020 12:12 PM
To: ericgrayson@graysonlaw.com
Subject: RE: RE:
Categories: Follow Up
By when will you file your opposition?
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
From: ericgrayson@graysonlaw.com
Sent: Wednesday, July 15, 2020 8:19 AM
To: Smith, Kevin
Subject: RE: RE:
I believe you should have produced Attorney Brahamst. I do not want to waive my right to a hearing. I will file a short
opposition. You need to file a Reply to our opposition so we can have the Motion to Dismiss finalized. I do not believe
they are co-denpendant.
Eric Grayson
From: Smith, Kevin
Sent: Tuesday, July 14, 2020 5:02 PM
To: ericgrayson@graysonlaw.com
Subject: RE: RE:
Following up again on the below. May we have your thoughts?
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
1
From: ericgrayson@graysonlaw.com
Sent: Monday, July 13, 2020 2:51 PM
To: Smith, Kevin
Subject: RE: RE:
I will get back to you tomorrow. Eric
From: Smith, Kevin
Sent: Monday, July 13, 2020 2:47 PM
To: ericgrayson@graysonlaw.com
Subject: RE: RE:
Following up on the below, are you able to give us your thoughts now?
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
From: Smith, Kevin
Sent: Wednesday, July 8, 2020 11:43 AM
To: ericgrayson@graysonlaw.com
Subject: RE: RE:
I tend to agree. I only ask because, if we fully brief and force the Court to decide the discovery issues, and if the Court
were to allow more discovery, then I was assuming the parties would probably seek to supplement their briefing on the
MTD. Personally, I think the Court really does not want to be involved in resolving the discovery dispute and
supplemental briefing, and at this point it would be a waste of everyone’s time and money. But I was just trying to make
sure we are on the same page one way or the other so either the motion for protective order can be marked off (as
moot) or we can plan out a briefing schedule for bringing it to a resolution before reclaiming the MTD for purposes of
our reply and a hearing.
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
From: ericgrayson@graysonlaw.com
Sent: Wednesday, July 8, 2020 11:12 AM
2
To: Smith, Kevin
Subject: RE: RE:
Why would it effect the timing of the MTD. I believe the Court addressed the timing in its Order and ruled that we had
to file our papers by July 6, 2020, whether or not we could get the discovery. I may be incorrect but that is how I
interpreted it.
Eric Grayson
From: Smith, Kevin
Sent: Wednesday, July 08, 2020 10:20 AM
To: ericgrayson@graysonlaw.com
Subject: RE: RE:
No problem. This also affects the timing of the underlying MTD, so are you able to let me know by Friday so we can
work out a schedule as necessary for one or both?
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
From: ericgrayson@graysonlaw.com
Sent: Wednesday, July 8, 2020 9:51 AM
To: Smith, Kevin
Subject: RE: RE:
I am pressing to get three briefs out. If you could mark it off, it would give me a few days to make a decision.
Eric Grayson
From: Smith, Kevin
Sent: Tuesday, July 07, 2020 8:23 PM
To: ericgrayson@graysonlaw.com
Subject: RE: RE:
For short calendar marking purposes, does Shipman still intend to respond to the motion for protective order?
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
3
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
From: ericgrayson@graysonlaw.com
Sent: Tuesday, July 7, 2020 4:01 PM
To: Smith, Kevin
Subject: RE:
Counsel: Start sending me emails without your “predictable” snotty and personal comments, and perhaps I will
respond.
Eric Grayson
From: Smith, Kevin
Sent: Tuesday, July 07, 2020 3:16 PM
To: ericgrayson@graysonlaw.com
Subject: RE:
Counsel:
As predicted, it appears as though you had plenty of information to submit re your views on the forum issue. Do we
therefore correctly presume that this moots our discovery dispute and pending motion for protective order? If not, by
when can you file your opposition?
Kevin
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
From: ericgrayson@graysonlaw.com
Sent: Monday, July 6, 2020 4:45 PM
To: Smith, Kevin
Subject:
WARNING! External email. Do not click/open unexpected links/attachments.
Dear Counsel: Enclosed please find pleadings that were or are to be Efiled today. We efiled pleadings with Lodged
exhibits and will send the unredacted versions to the Clerk.
4
s/ Eric D. Grayson
Eric D. Grayson, Esq.
Grayson & Associates, P.C.
175 West Putnam Avenue
Greenwich, Connecticut 06830
Tel: (203) 622-8100
Fax: (203) 622-8104
Email: ericgrayson@graysonlaw.com
Website: www.graysonlaw.com
This electronic mail (including any attachments) may contain information that is privileged, confidential, and/or otherwise protected under
applicable law from disclosure to anyone other than its intended recipient(s). Any dissemination or use of this electronic mail or its contents
(including any attachments) by persons other than the intended recipient(s) is strictly prohibited. If you have received this message in error,
please notify the sender or Wiggin and Dana LLP at 203-498-4400 immediately and then delete the original message (including any
attachments) in its entirety. We take steps to protect against viruses and other malicious code but advise you to carry out your own checks and
precautions as we accept no liability for any which remain. We may monitor electronic mail sent to and from our server(s) to ensure regulatory
compliance to protect our clients and business.
Disclosure under U.S. IRS Circular 230: Wiggin and Dana LLP informs you that any tax advice contained in this communication (including any
attachments) was not intended or written to be used, and cannot be used, for the purpose of avoiding federal tax related penalties or promoting,
marketing or recommending to another party any transaction or matter addressed herein.
WD03262012
5
EXHIBIT 5
Gallagher, Robyn E.
From: Andrew Hayes
Sent: Wednesday, June 10, 2020 11:18 AM
To: Smith, Kevin
Cc: ericgrayson@graysonlaw.com; Chavez, Nicole; Gallagher, Robyn E.
Subject: Re: Shipman Associates v. White & Case - Short Calendar
Good morning attorney Smith, if we are going to have any kind of discussion, please clarify what
we need to discuss - specifically, did your client ever agree to stipulate that the parties never
had a business meeting in New York, and that they did have business meetings in Connecticut?
Look forward to hearing from you on this basic point.
Thanks,
Andrew Hayes
On Wed, Jun 10, 2020 at 10:58 AM Smith, Kevin wrote:
Glass houses, Attorney Grayson. You were the first to submit our communications to the Court, with
mischaracterizations, thereby forcing us to correct the record.
The one thing we can agree on is the obvious point that the Court does not want to deal with unnecessary scheduling
issues between counsel, so your suggestion that we nonetheless drag the Court into a scheduling conversation strikes
me as exactly the wrong next step. It also will cause unnecessary and unjustified delay. So, no, we do not consent to
it. The next step ought to be a real discussion and conferral between us about what is actually needed to address our
pending motion to dismiss. As I said before, “Had you simply picked up the phone and treated us with any degree of
reasonableness and professional courtesy, this all could have been worked out. I sincerely hope you will do so in the
future.” To which you responded: “Actually I will not be calling you.” Let me know if you have changed your mind, and
I would be happy to discuss the issues with you.
Kevin
Kevin M. Smith
Direct: 203.498.4579 | ksmith@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
1
From: ericgrayson@graysonlaw.com
Sent: Wednesday, June 10, 2020 10:14 AM
To: Chavez, Nicole
Cc: Smith, Kevin ; Gallagher, Robyn E. ; andrewwhayes@gmail.com
Subject: RE: Shipman Associates v. White & Case - Short Calendar
Attorney Smith: I am reticent to write to you because it seems our email exchanges end up in Court pleadings as some
purported indication by you that I have acted in an improper manner - - which I have not. One of my takes from the
Court’s Order is that the Court would like to see some dialogue and cooperation between counsel on scheduling
matters - - which is the normal course.
That being said, would you consent to a Caseflow request for a Status Conference where we can discuss the scheduling
of all of the motions relating to the Motion to Dismiss, including the hearing on same.
Eric Grayson
Eric D. Grayson, Esq.
Grayson & Associates, P.C.
175 West Putnam Avenue
Greenwich, Connecticut 06830
Tel: (203) 622-8100
Fax: (203) 622-8104
Cell: (203) 912-5634
Email: ericgrayson@graysonlaw.com
Website: www.graysonlaw.com
2
From: ericgrayson@graysonlaw.com
Sent: Tuesday, June 09, 2020 3:44 PM
To: 'Chavez, Nicole'
Cc: 'Smith, Kevin' ; 'Gallagher, Robyn E.' ; Andrew Hayes
(andrewwhayes@gmail.com)
Subject: RE: Shipman Associates v. White & Case - Short Calendar
We just filed a Motion to Postpone the hearing under Standard Tallow with supporting Affidavits. (Nos. 113.00, 114.00
and 115.00) Will you consent to a Caseflow request that they all be taken at the same time as the pending Motions and
your Objection.
Eric Grayson
Please see below Short Calendar Marking
“The following Short Calendar Markings were received on:
Tuesday, June 09, 2020 03:40:17 PM
for GRAYSON & ASSOCIATES PC (418385)
Short Calendar Markings Received
Case Name: SHIPMAN ASSOCIATES, LLC, S/B/A THEBLAM v. WHITE & CASE, LLP Marked: Take Papers
Docket Number: FST-CV-20-6046192-S Location: Stamford JD
Court Date: Jun 15, 2020 9:30 AM Case Type: CV
Cal.-Seq. No.: 13-028 Entry No.: 110.00
3
Motion/Objection: MOTION FOR EXTENSION OF TIME (Plaintiff)
Certified By Eric Grayson, (203) 622-8100”
From: Chavez, Nicole
Sent: Tuesday, June 09, 2020 3:00 PM
To: ericgrayson@graysonlaw.com
Cc: Smith, Kevin ; Gallagher, Robyn E.
Subject: Shipman Associates v. White & Case - Short Calendar
Attached please find our markings in the above.
Nicole DiGiorgi Chavez
Litigation Paralegal
Wiggin and Dana LLP
265 Church Street, P.O. Box 1832
New Haven, Connecticut 06508-1832
Direct: 203.498.4466 | nchavez@wiggin.com
www.wiggin.com
CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH
This electronic mail (including any attachments) may contain information that is privileged, confidential, and/or otherwise protected under
applicable law from disclosure to anyone other than its intended recipient(s). Any dissemination or use of this electronic mail or its contents
(including any attachments) by persons other than the intended recipient(s) is strictly prohibited. If you have received this message in error,
please notify the sender or Wiggin and Dana LLP at 203-498-4400 immediately and then delete the original message (including any
attachments) in its entirety. We take steps to protect against viruses and other malicious code but advise you to carry out your own checks
and precautions as we accept no liability for any which remain. We may monitor electronic mail sent to and from our server(s) to ensure
regulatory compliance to protect our clients and business.
Disclosure under U.S. IRS Circular 230: Wiggin and Dana LLP informs you that any tax advice contained in this communication (including
4
any attachments) was not intended or written to be used, and cannot be used, for the purpose of avoiding federal tax related penalties or
promoting, marketing or recommending to another party any transaction or matter addressed herein.
WD03262012
--
Andrew W. Hayes
T: 917-770-0180
skype: AndrewWHayes
5
Preview
DOCKET NO.: FST-CV20-6046192-S SUPERIOR COURT J.D. STAMFORD/NORWALK SHIPMAN ASSOCIATES, LLC D/B/A AT STAMFORD THEBALM, Plaintiff, v. WHITE & CASE LLP, Defendant. AUGUST 10, 2020 ---------------------------------------------------- WHITE & CASE LLP’s REPLY IN FURTHER SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER In the first page of its Objection, Plaintiff Shipman Associates, LLC d/b/a theBalm (“theBalm”) admits that the parties’ discovery dispute is “moot as the Plaintiff has already filed its opposition to the Motion to Dismiss.” Accordingly, the Court no longer needs to decide the issues raised in the Motion for Protective Order and can instead turn to White & Case’s Motion to Dismiss, Dkt. No. 107.00. Because theBalm nonetheless filed a brief that grossly distorts the record related to the Motion for Protective Order, and also inappropriately suggests that the pending Motion to Dismiss should be denied without consideration of its merits, White & Case further responds below to the extent necessary or helpful to the Court. I. Motion for Protective Order At the time it was filed on June 29, the Motion for Protective Order was necessary to stop the abusive and burdensome discovery sought by theBalm, purportedly for purposes of opposing White & Case’s pending Motion to Dismiss for Forum Non Conveniens. Beforehand, theBalm had repeatedly indicated to White & Case and this Court that it was seeking discovery on just two facts that were entirely within its own principals’ knowledge: first, that no principals of 1 theBalm met with White & Case in New York and, second, that White & Case traveled to Connecticut to meet with theBalm’s principals. See Mot. For Prot. Order Ex. 2 (E-mail from E. Grayson to K. Smith); Dkt. No. 113. at 3-4. TheBalm nonetheless inexplicably served an onerous deposition notice with accompanying document requests that extended well beyond these limited topics to include merits-based discovery that was unrelated to the forum non conveniens issues. See Mem. in Support of Mot. For Prot. Order, Dkt. 116.00, at 4 (“Mem.”). Contrary to the false narrative spun by theBalm’s Objection, White & Case did not ignore the deposition notice, and it attempted to confer with theBalm about what theBalm claimed it needed to oppose the Motion to Dismiss, even proposing stipulations that would have resolved the two factual issues it had identified. Tellingly, theBalm ignored those efforts, and filed its Opposition to the Motion to Dismiss on July 6, replete with voluminous exhibits and multiple affidavits addressing the very points upon which it had claimed it needed discovery. Id. Accordingly, White & Case reached out to theBalm the next day, July 7, asking if it agreed that the filing of its Opposition “moots our discovery dispute and pending motion for protective order?” Ex. 4. TheBalm responded that it was not sure and asked for a few days to think about it. On July 15, theBalm stated that it would be filing a “short opposition” to the Motion for Protective Order. TheBalm ultimately filed its Objection on August 7, expressly conceding that the discovery dispute was “moot as the Plaintiff has already filed its opposition to the Motion to Dismiss.” Obj., Dkt. No. 124.00. Notably, theBalm wasted weeks before communicating that conclusion in a 3-page “Objection” that is of no consequence.1 1 TheBalm’s Objection misleadingly states that “there was no need for Defendant to have claimed the Motion for a Protective Order to the Short Calendar to obtain a post facto advisory ruling on its refusal to appear for the deposition. (We asked Defendant to mark the Motion off.).” Obj. at 3. As White & Case said on July 7 and repeatedly thereafter, it agrees that the parties’ discovery dispute was mooted on July 6 when theBalm filed its Opposition to the Motion to Dismiss. However, theBalm refused to agree that the dispute was moot until it filed its Objection on August 7. The only time theBalm asked White & Case to mark off the motion was on August 6 to 2 II. Motion To Dismiss Despite conceding that the discovery dispute is moot, theBalm inappropriately uses its Objection to argue that, because Mr. Brahmst did not appear for his deposition, the Court should impose an extreme and wholly unjustified sanction of denying the Motion to Dismiss without considering its merits. Obj. at *1. Even if theBalm had properly moved for any such discovery sanction, which it did not, it is incorrect. Again, White & Case never ignored the deposition notice. It attempted in good faith to confer with theBalm as early as June 10 about what information it really needed,2 proposed an alternative to the deposition and document requests in the form of stipulations,3 and then moved for relief from the Court when those efforts were unsuccessful—all before the unilaterally chosen deposition date that theBalm attempted to impose on White & Case without any obtain even more time to file its Objection, suggesting the opposite view, i.e., that there was still a dispute that needed resolution. 2 As for the necessity of the deposition, it is telling that theBalm filed a voluminous opposition without it and now agrees the issue is moot. Attorney Brahmst’s deposition was never necessary. Indeed, theBalm already deposed him for a full 8 hours in the pending case before Justice Bannon. The notice of his deposition in this case was a poorly disguised second bite at the apple, and only underscores the importance of White & Case’s pending motion to dismiss for purposes, among others, of avoiding burdensome, unnecessary, and duplicative discovery. 3 TheBalm itself had indicated a willingness to entertain stipulations on the two topics originally identified, asking White & Case on June 10 whether it would “agree to stipulate that the parties never had a business meeting in New York, and that they did have business meetings in Connecticut.” Ex. 5. Stipulations were an obvious solution given the limited scope of discovery needed and the spirit of limited discovery on such non-merits based issues, see, e.g., Durkin v. Invatec, Inc., 258 Conn. 454, 472 (2001) (requiring “extensive investigation would defeat the purpose” of a forum non conveniens motion to dismiss). Consistent with theBalm’s suggestion, White & Case proposed stipulations of fact addressing the two issues only a few days later. TheBalm completely ignored them thereafter and in its Objection now tries to justify that unreasonable refusal to confer by arguing that the stipulations “were so slanted towards the Defendants that it was unsignable.” Obj. at *2.That is the first time theBalm communicated this position to White & Case, and, if that is how it viewed them, the reasonable response would have been to negotiate the language of the stipulations, not to ignore them altogether. 3 meaningful conferral.4 White & Case acted in good faith,5 and theBalm cites no law supporting the notion that a past discovery dispute that theBalm now admits is moot should somehow result in the denial of the Motion to Dismiss without consideration of its merits. See Opp. at *1. III. Conclusion For the foregoing reasons, the Court now does not need to decide the Motion for Protective Order. Should it become necessary for any reason, the Court grant the Motion for the reasons stated in the original moving papers and this reply. Defendant, WHITE & CASE LLP /s/ Kevin M. Smith Kevin M. Smith Robyn E. Gallagher WIGGIN AND DANA LLP Juris No. 067700 One Century Tower 265 Church Street, P.O. Box 1832 New Haven, CT 06508-1832 Tel: (203) 498-4400 Fax: (203) 782-2889 ksmith@wiggin.com rgallagher@wiggin.com 4 After all these efforts and well before theBalm’s Opposition was due on July 6, White & Case informed theBalm on June 25 that Attorney Brahmst would not be appearing for his deposition, and White & Case moved for a protective order on June 29. TheBalm therefore had ample time to either seek an additional extension of time for opposing the Motion to Dismiss, or to otherwise seek to compel discovery before opposing the Motion to Dismiss. Tellingly, it did neither. 5 Moreover, contrary to theBalm’s revisionist history, when theBalm did have informal factual questions for purposes of forum non conveniens, White & Case answered promptly. On June 26, for example, theBalm asked for the personal addresses of White & Case attorneys without disclosing why it wanted that information. Concerned with providing personal addresses, White & Case responded that the individuals could be contacted through counsel. On June 29, theBalm clarified that it wanted the information to calculate “travel time to the Courthouse” for purposes of its Opposition to the Motion to Dismiss. On July 2, White & Case provided the mileages. TheBalm followed up by asking for mileage calculations to the New York courthouse as well, and White & Case responded with the requested information the same day. TheBalm’s attempt to characterize White & Case as anything but forthcoming and responsive is utterly and completely false. 4 CERTIFICATION I hereby certify that, on August 10, 2020, a copy of the foregoing was delivered via electronic mail to all counsel of record as follows: Eric D. Grayson, Esq. Grayson & Associates, P.C. 175 West Putnam Avenue, Second Floor Greenwich, Connecticut 06830 ericgrayson@graysonlaw.com Andrew Hayes, Esq. 43 West 43rd St., Suite 195 New York, NY 10017 ahayes@andrewhayes.net /s/ Kevin M. Smith Kevin M. Smith 88888888\1967\4840-2127-4567.v2 5 EXHIBIT 4 Smith, Kevin From: Smith, Kevin Sent: Wednesday, July 15, 2020 12:12 PM To: ericgrayson@graysonlaw.com Subject: RE: RE: Categories: Follow Up By when will you file your opposition? Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH From: ericgrayson@graysonlaw.com Sent: Wednesday, July 15, 2020 8:19 AM To: Smith, Kevin Subject: RE: RE: I believe you should have produced Attorney Brahamst. I do not want to waive my right to a hearing. I will file a short opposition. You need to file a Reply to our opposition so we can have the Motion to Dismiss finalized. I do not believe they are co-denpendant. Eric Grayson From: Smith, Kevin Sent: Tuesday, July 14, 2020 5:02 PM To: ericgrayson@graysonlaw.com Subject: RE: RE: Following up again on the below. May we have your thoughts? Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH 1 From: ericgrayson@graysonlaw.com Sent: Monday, July 13, 2020 2:51 PM To: Smith, Kevin Subject: RE: RE: I will get back to you tomorrow. Eric From: Smith, Kevin Sent: Monday, July 13, 2020 2:47 PM To: ericgrayson@graysonlaw.com Subject: RE: RE: Following up on the below, are you able to give us your thoughts now? Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH From: Smith, Kevin Sent: Wednesday, July 8, 2020 11:43 AM To: ericgrayson@graysonlaw.com Subject: RE: RE: I tend to agree. I only ask because, if we fully brief and force the Court to decide the discovery issues, and if the Court were to allow more discovery, then I was assuming the parties would probably seek to supplement their briefing on the MTD. Personally, I think the Court really does not want to be involved in resolving the discovery dispute and supplemental briefing, and at this point it would be a waste of everyone’s time and money. But I was just trying to make sure we are on the same page one way or the other so either the motion for protective order can be marked off (as moot) or we can plan out a briefing schedule for bringing it to a resolution before reclaiming the MTD for purposes of our reply and a hearing. Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH From: ericgrayson@graysonlaw.com Sent: Wednesday, July 8, 2020 11:12 AM 2 To: Smith, Kevin Subject: RE: RE: Why would it effect the timing of the MTD. I believe the Court addressed the timing in its Order and ruled that we had to file our papers by July 6, 2020, whether or not we could get the discovery. I may be incorrect but that is how I interpreted it. Eric Grayson From: Smith, Kevin Sent: Wednesday, July 08, 2020 10:20 AM To: ericgrayson@graysonlaw.com Subject: RE: RE: No problem. This also affects the timing of the underlying MTD, so are you able to let me know by Friday so we can work out a schedule as necessary for one or both? Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH From: ericgrayson@graysonlaw.com Sent: Wednesday, July 8, 2020 9:51 AM To: Smith, Kevin Subject: RE: RE: I am pressing to get three briefs out. If you could mark it off, it would give me a few days to make a decision. Eric Grayson From: Smith, Kevin Sent: Tuesday, July 07, 2020 8:23 PM To: ericgrayson@graysonlaw.com Subject: RE: RE: For short calendar marking purposes, does Shipman still intend to respond to the motion for protective order? Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com 3 CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH From: ericgrayson@graysonlaw.com Sent: Tuesday, July 7, 2020 4:01 PM To: Smith, Kevin Subject: RE: Counsel: Start sending me emails without your “predictable” snotty and personal comments, and perhaps I will respond. Eric Grayson From: Smith, Kevin Sent: Tuesday, July 07, 2020 3:16 PM To: ericgrayson@graysonlaw.com Subject: RE: Counsel: As predicted, it appears as though you had plenty of information to submit re your views on the forum issue. Do we therefore correctly presume that this moots our discovery dispute and pending motion for protective order? If not, by when can you file your opposition? Kevin Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH From: ericgrayson@graysonlaw.com Sent: Monday, July 6, 2020 4:45 PM To: Smith, Kevin Subject: WARNING! External email. Do not click/open unexpected links/attachments. Dear Counsel: Enclosed please find pleadings that were or are to be Efiled today. We efiled pleadings with Lodged exhibits and will send the unredacted versions to the Clerk. 4 s/ Eric D. Grayson Eric D. Grayson, Esq. Grayson & Associates, P.C. 175 West Putnam Avenue Greenwich, Connecticut 06830 Tel: (203) 622-8100 Fax: (203) 622-8104 Email: ericgrayson@graysonlaw.com Website: www.graysonlaw.com This electronic mail (including any attachments) may contain information that is privileged, confidential, and/or otherwise protected under applicable law from disclosure to anyone other than its intended recipient(s). Any dissemination or use of this electronic mail or its contents (including any attachments) by persons other than the intended recipient(s) is strictly prohibited. If you have received this message in error, please notify the sender or Wiggin and Dana LLP at 203-498-4400 immediately and then delete the original message (including any attachments) in its entirety. We take steps to protect against viruses and other malicious code but advise you to carry out your own checks and precautions as we accept no liability for any which remain. We may monitor electronic mail sent to and from our server(s) to ensure regulatory compliance to protect our clients and business. Disclosure under U.S. IRS Circular 230: Wiggin and Dana LLP informs you that any tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any transaction or matter addressed herein. WD03262012 5 EXHIBIT 5 Gallagher, Robyn E. From: Andrew Hayes Sent: Wednesday, June 10, 2020 11:18 AM To: Smith, Kevin Cc: ericgrayson@graysonlaw.com; Chavez, Nicole; Gallagher, Robyn E. Subject: Re: Shipman Associates v. White & Case - Short Calendar Good morning attorney Smith, if we are going to have any kind of discussion, please clarify what we need to discuss - specifically, did your client ever agree to stipulate that the parties never had a business meeting in New York, and that they did have business meetings in Connecticut? Look forward to hearing from you on this basic point. Thanks, Andrew Hayes On Wed, Jun 10, 2020 at 10:58 AM Smith, Kevin wrote: Glass houses, Attorney Grayson. You were the first to submit our communications to the Court, with mischaracterizations, thereby forcing us to correct the record. The one thing we can agree on is the obvious point that the Court does not want to deal with unnecessary scheduling issues between counsel, so your suggestion that we nonetheless drag the Court into a scheduling conversation strikes me as exactly the wrong next step. It also will cause unnecessary and unjustified delay. So, no, we do not consent to it. The next step ought to be a real discussion and conferral between us about what is actually needed to address our pending motion to dismiss. As I said before, “Had you simply picked up the phone and treated us with any degree of reasonableness and professional courtesy, this all could have been worked out. I sincerely hope you will do so in the future.” To which you responded: “Actually I will not be calling you.” Let me know if you have changed your mind, and I would be happy to discuss the issues with you. Kevin Kevin M. Smith Direct: 203.498.4579 | ksmith@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH 1 From: ericgrayson@graysonlaw.com Sent: Wednesday, June 10, 2020 10:14 AM To: Chavez, Nicole Cc: Smith, Kevin ; Gallagher, Robyn E. ; andrewwhayes@gmail.com Subject: RE: Shipman Associates v. White & Case - Short Calendar Attorney Smith: I am reticent to write to you because it seems our email exchanges end up in Court pleadings as some purported indication by you that I have acted in an improper manner - - which I have not. One of my takes from the Court’s Order is that the Court would like to see some dialogue and cooperation between counsel on scheduling matters - - which is the normal course. That being said, would you consent to a Caseflow request for a Status Conference where we can discuss the scheduling of all of the motions relating to the Motion to Dismiss, including the hearing on same. Eric Grayson Eric D. Grayson, Esq. Grayson & Associates, P.C. 175 West Putnam Avenue Greenwich, Connecticut 06830 Tel: (203) 622-8100 Fax: (203) 622-8104 Cell: (203) 912-5634 Email: ericgrayson@graysonlaw.com Website: www.graysonlaw.com 2 From: ericgrayson@graysonlaw.com Sent: Tuesday, June 09, 2020 3:44 PM To: 'Chavez, Nicole' Cc: 'Smith, Kevin' ; 'Gallagher, Robyn E.' ; Andrew Hayes (andrewwhayes@gmail.com) Subject: RE: Shipman Associates v. White & Case - Short Calendar We just filed a Motion to Postpone the hearing under Standard Tallow with supporting Affidavits. (Nos. 113.00, 114.00 and 115.00) Will you consent to a Caseflow request that they all be taken at the same time as the pending Motions and your Objection. Eric Grayson Please see below Short Calendar Marking “The following Short Calendar Markings were received on: Tuesday, June 09, 2020 03:40:17 PM for GRAYSON & ASSOCIATES PC (418385) Short Calendar Markings Received Case Name: SHIPMAN ASSOCIATES, LLC, S/B/A THEBLAM v. WHITE & CASE, LLP Marked: Take Papers Docket Number: FST-CV-20-6046192-S Location: Stamford JD Court Date: Jun 15, 2020 9:30 AM Case Type: CV Cal.-Seq. No.: 13-028 Entry No.: 110.00 3 Motion/Objection: MOTION FOR EXTENSION OF TIME (Plaintiff) Certified By Eric Grayson, (203) 622-8100” From: Chavez, Nicole Sent: Tuesday, June 09, 2020 3:00 PM To: ericgrayson@graysonlaw.com Cc: Smith, Kevin ; Gallagher, Robyn E. Subject: Shipman Associates v. White & Case - Short Calendar Attached please find our markings in the above. Nicole DiGiorgi Chavez Litigation Paralegal Wiggin and Dana LLP 265 Church Street, P.O. Box 1832 New Haven, Connecticut 06508-1832 Direct: 203.498.4466 | nchavez@wiggin.com www.wiggin.com CONNECTICUT | NEW YORK | PHILADELPHIA | WASHINGTON, DC | PALM BEACH This electronic mail (including any attachments) may contain information that is privileged, confidential, and/or otherwise protected under applicable law from disclosure to anyone other than its intended recipient(s). Any dissemination or use of this electronic mail or its contents (including any attachments) by persons other than the intended recipient(s) is strictly prohibited. If you have received this message in error, please notify the sender or Wiggin and Dana LLP at 203-498-4400 immediately and then delete the original message (including any attachments) in its entirety. We take steps to protect against viruses and other malicious code but advise you to carry out your own checks and precautions as we accept no liability for any which remain. We may monitor electronic mail sent to and from our server(s) to ensure regulatory compliance to protect our clients and business. Disclosure under U.S. IRS Circular 230: Wiggin and Dana LLP informs you that any tax advice contained in this communication (including 4 any attachments) was not intended or written to be used, and cannot be used, for the purpose of avoiding federal tax related penalties or promoting, marketing or recommending to another party any transaction or matter addressed herein. WD03262012 -- Andrew W. Hayes T: 917-770-0180 skype: AndrewWHayes 5