memorandum of law in support of plaintiffs’ motion …
TRANSCRIPT
1
SUPREME COURT OF THE STATE OF NEW YORK Index No. 158961/2013
COUNTY OF NEW YORK
------------------------------------------------------------------------X
SHERINA THOMAS and DIANDRA MENDEZ,
MEMORANDUM OF LAW
Plaintiffs, IN SUPPORT OF PLAINTIFFS’
MOTION TO COMPEL
-against- DISCOVERY FROM
DEFENDANT DAVID SHAVOLIAN
EONY, LLC, and DAVID SHAVOLIAN, individually,
Defendants.
------------------------------------------------------------------------X
PRELIMINARY STATEMENT
The Plaintiffs are entitled to very basic information in this litigation, that being evidence
supporting their claims that is within the possession, custody, or control of Defendant David
Shavolian. Throughout the course of this litigation, Defendant Shavolian has only acted to obstruct,
obfuscate, and delay Plaintiffs’ pursuit of redress for the wrongs he committed against them: First.
Defendant Shavolian filed a frivolous motion to dismiss that drew the rebuke of this Court. See,
Order dated (Docket No. 29.) Next, he refused to stipulate to adding Diandra Mendez as a plaintiff
without any colorable basis for so doing. And, throughout the litigation he has refused to act with
civility by repeatedly failing to respond to Plaintiffs’ counsel’s telephone calls, emails or letters in
violation of the New York State Standards of Civility.1 See, Letter dated June 5, 2015, attached as
Exhibit A, to the Affirmation of W. Gordon Kaupp, Esq. (Kaupp Aff.”). Most recently, he failed to
respond in any manner to the eleven-page deficiency letter served on Defendant by Plaintiffs via
email and U.S. Mail on March 24, 2016 that addressed the significant deficiencies in his discovery
responses, as detailed below. Ex. B, Kaupp Aff.
1 Section IV of the New York State Standards of Civility provides, “A lawyer should promptly return phone
calls and answer correspondence reasonably requiring a response.” Section II.A. of the Standards states, “Lawyers
should avoid unnecessary motion practice or other judicial intervention by negotiating and agreeing with other
counsel whenever it is practicable to do so.”
FILED: NEW YORK COUNTY CLERK 05/18/2016 08:50 PM INDEX NO. 158961/2013
NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 05/18/2016
1 of 13
2
The issue here, however, is that Defendant Shavolian has provided discovery responses that
are produced in bad faith and that blatantly flout the discovery rules. After more than 12 months
since Plaintiff Thomas propounded her discovery and after receiving extensions of time from
Plaintiffs and the Court, Defendant Shavolian has failed in spectacular fashion to provide
substantive responses, and instead, has hidden behind boilerplate objections that, for the most part,
are inapplicable and do not warrant withholding the information Plaintiffs seek. For example,
Defendant Shavolian failed to provide substantive responses to 17 of the 20 interrogatories
propounded by Plaintiff Thomas. See, Ex. L, Kaupp Aff. Of the three interrogatories to which he
did provide a substantive response – Nos. 1, 18 and 20 – two are woefully inadequate. Id.
Accordingly, Plaintiffs seek an order from this Court compelling the disclosure of the discovery
they have sought for more than a year.
The Plaintiffs seek to prosecute this matter in a reasonable and timely manner but, their
ability to prosecute this action in a reasonable manner has been repeatedly frustrated. Defendant
Shavolian’s failure to act with civility and in good faith should not be countenanced by this Court.
Indeed, Plaintiffs hereby put Defendant Shavolian on notice that should he continue to disobey the
orders of this Court or willfully fail to disclose information, they will seek orders from this Court
under New York Civil Practice Law and Rules (“CPLR”) § 3126 that (1) deem issues resolved in
their favor, (2) prohibit Defendant Shavolian from supporting or opposing claims or defenses with
evidence or testimony, and/or (3) strike Defendant’s answer or portions thereof.2
2 CPLR § 3126, with emphasis added, provides:
If any party…refuses to obey an order for disclosure or willfully fails to disclose information which
the court finds ought to have been disclosed pursuant to this article, the court may make such orders
with regard to the failure or refusal as are just, among them:
1. an order that the issues to which the information is relevant shall be deemed resolved for
purposes of the action in accordance with the claims of the party obtaining the order; or
2 of 13
3
RELEVANT PROCEDURAL HISTORY
On April 30, 2015, Defendant Shavolian was served with Plaintiff Sherina Thomas’ First
Set of Interrogatories to David Shavolian and First Request for Production of Documents to David
Shavolian. See, Exs. C and D, Kaupp Aff. Under CPLR §§ 3133(a) and 3122(a), Defendant’s
responses were due 20 days thereafter – June 1, 2015.3 Defendant Shavolian failed to timely
produce responses to this discovery. Kaupp Aff., ¶¶ 6 - 8.
On October 7, 2015, the Court ordered Defendant Shavolian to answer Plaintiff Thomas’s
discovery within 10 days of serving his answer. See, Ex. E, Kaupp Aff. On November 3, 2015,
Defendant Shavolian filed and served his Answer, which imposed a deadline of November 13,
2015 for service of his discovery responses. Ex. F, Kaupp Aff. Defendant Shavolian again failed to
provide timely discovery responses. Kaupp Aff., ¶11.
On November 12, 2015, Defendant Shavolian was served with Plaintiff Diandra Mendez’s
First Set of Interrogatories to Defendant David Shavolian and First Request for Production of
Documents to Defendant David Shavolian. Exs. G and H, Kaupp Aff.
Defendant Shavolian failed to produce his responses to the interrogatories and document
demands propounded by Plaintiff Mendez within 20 days of service in violation of CPLR §§
3133(a) and CPLR § 3120(2). Kaupp Aff., ¶ 13.
On February 11, 2016, Plaintiffs requested Defendant Shavolian to provide them with a
2. an order prohibiting the disobedient party from supporting or opposing designated
claims or defenses, from producing in evidence designated things or items of testimony,
or from introducing any evidence of the physical, mental or blood condition sought to
be determined, or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment
by default against the disobedient party.
3 Plaintiff Thomas’s summons and complaint was filed and served on September 13, 2013. Defendant Shavolian’s
answer was due October 3, 2013, which he failed to timely file. Accordingly, Plaintiff was permitted to propound
discovery as of October 4, 2013. See, CPLR § 3132. See also, CPLR § 3120.
3 of 13
4
date certain that his discovery responses would be served. Kaupp Aff., ¶ 14. In response,
Defendant Shavolian requested an additional 30 days to provide his responses. Id. Plaintiff refused
to grant Defendant 30 days and, instead, provided Defendant with an extension until February 26,
2016. Kaupp Aff., ¶ 14 and Ex. I.
On February 24, 2016, this Court held a conference with the parties and ordered Defendant
Shavolian to provide his discovery responses by March 9, 2016. See, Order dated February 24,
2016 attached as Ex. J, Kaupp Aff.
On March 9, 2016, Defendant Shavolian served Plaintiffs with (1) Defendant David
Shavolian’s Witness Disclosures, (2) Defendant David Shavolian’s Responses and Objections to
Plaintiff’s [Sherina Thomas] First Set of Interrogatories, (3) Defendant David Shavolian’s
Responses and Objections to Plaintiff’s [Sherina Thomas] First Request for Production of
Documents, (4) Defendant David Shavolain’s Responses and Objections to Plaintiff Diandra
Mendez’s First Set of Interrogatories, and (5) Defendant David Shavolian’s Responses and
Objections to Plaintiff Diandra Mendez’s First Request for Production of Documents. See, Exs. K
through O, respectively, Kaupp Aff.
On March 24, 2016, in an attempt to meet and confer with Defendant Shavolian concerning
his deficient discovery responses, Plaintiffs served Defendant Shavolian with an eleven-page
deficiency letter that detailed the inadequacy of his responses and requested that Defendant provide
substantive discovery responses made in good faith by April 8, 2016. See, Exhibit B, Kaupp Aff.
As of the date of this Motion, Defendant Shavolian has failed to respond to the letter in any manner
or provide amended or supplemental discovery responses. Kaupp Aff., ¶ 5.
4 of 13
5
ARGUMENT
I. THE STANDARD GOVERNING DISCOVERY
It is axiomatic that discovery is to be liberally construed. Anonymous v. High School for
Envtl. Studies, 32 A.D.3d 353, 358 (1st Dept. 2006) (quotations omitted) (“It is beyond cavil that
New York has long favored open and far-reaching pretrial discovery.”) “There shall be full
disclosure of all matter material and necessary in the prosecution or defense of an action,
regardless of the burden of proof…” CPLR § 3101(a). “The words material and necessary as
used in the statute are to be interpreted liberally to require disclosure, upon request, of any facts
bearing on the controversy which will assist in the preparation for trial.” High School for Envtl.
Studies, 32 A.D.3d at 358 (quotations omitted) citing Allen v. Crowell-Collier Publ. Co., 21 N.Y.
2d 403,406-407 (1968).
The CPLR further provides, “A party shall amend or supplement a response previously
given to a request for disclosure promptly upon the party’s thereafter obtaining information
that the response was incorrect or incomplete when made, no longer is correct and complete,
and the circumstances are such that a failure to amend or supplement the response would be
materially misleading…Further amendment or supplementation may be obtained by court order.”
CPLR § 3101(h) (emphasis added).
Under CPLR § 3124, Plaintiffs now seek an order from the Court compelling Defendant
Shavolian to disclose the information sought in the first set of discovery propounded by Plaintiffs.
II. DEFENDANT SHAVOLIAN FAILED TO PRODUCE INFORMATION THAT IS
MATERIAL AND NECESSARY TO PLAINTIFFS’ CLAIMS
A. Plaintiffs Seek Information that Is Material and Necessary to Their Claims
Plaintiffs assert claims against Defendants David Shavolian and EONY, LLC for
discrimination arising out of the sexual harassment to which they were subjected at work by their
5 of 13
6
boss, Defendant Shavolian. See, First Amended Complaint (Dkt No. 36). Plaintiffs’ interrogatories
seek, for example, information known by witnesses, the last known contact information for
witnesses, the identity and last known contact information of Defendants’ current or former
employees, the identity of Plaintiffs’ supervisors, information concerning other complaints of
discrimination against Defendant Shavolian, information concerning Defendant’s involvement in
the modeling industry, and other such relevant information. See, Exs. C and G, Kaupp Aff.
Plaintiffs’ document demands also seek information that is material and necessary. For
example, employee handbooks or personnel manuals, documents that reflect communications
concerning the Plaintiffs claims or cessation of employment, witness statements, documents related
to any investigation, documents that concern other complaints of discrimination against Defendant
Shavolian, among other documents that are material and necessary to the prosecution of this action.
See, Exs. D and H, Kaupp Aff.
The information sought by Plaintiffs will help establish the identity of witnesses; prove
whether Defendant Shavolian engaged in the discriminatory conduct alleged; prove the existence
of a hostile work environment during the timeframe that Plaintiffs worked for Defendant
Shavolian; prove Defendant Shavolian’s discriminatory intent; prove lack of mistake, common
plan or scheme, or modus operandi; and, identify facts that Defendant expects to rely on in his
defense to this action. Such information is clearly material and necessary and within the scope of
CPLR § 3101(a)(1).
B. Defendant Shavolian’s Discovery Responses Are Deficient Because They Are Not
Verified
Section 3133(b) of the CPLR requires the responding party to respond under oath. None of
Defendant Shavolian’s discovery responses are verified. See, Exs. L through O, Kaupp Aff.
6 of 13
7
C. Defendant’s Boilerplate Objections Are Insufficient as a Matter of Law
Section 3101(b) of the CPLR only exempts from disclosure information protected by
privilege; it does not permit the withholding of information based on non-privileged objections.
A party that withholds documents under a claim of privilege must produce a privilege log. CPLR §
3122(b).
Here, Defendant Shavolian has failed to provide substantive responses to numerous
interrogatories propounded by Plaintiffs and, instead, has set forth boilerplate objections without
explanation that are improper and without merit. High School for Envtl. Studies, 32 A.D.3d at
359. Defendant Shavolian has also failed to produce a privilege log for any documents or
materials he is withholding pursuant to a claim of privilege.
In High School for Envtl. Studies, the defendant objected to 26 categories of documents
as “vague, confusing, overbroad, unduly burdensome and not likely to lead to information which
is material and necessary to the prosecution of this matter.” 32 A.D.3d at 355. The court
concluded that these objections were “purely conclusory and devoid of reason and should be
stricken.” Id. at 356. See also, SRN realty, LLC v. Scarano Architect, PLLC, 34 Misc. 3d
1208(A), 943 N.Y.S. 2d 795 (N.Y. Sup. Ct., Richmond Cty. 2011).
Here, Defendant’s responses to Plaintiffs’ separately propounded interrogatories almost
universally object on the following grounds: “overbroad, unduly burdensome, seeking information
protected by the attorney-client privilege, and/or work product doctrine, and seeking information
that is not reasonably calculated to lead to discovery of admissible evidence.” See, Exs. L through
O, Kaupp Aff. These are just like the objections at issue in High School for Envtl. Studies that the
court concluded were improper and should be stricken.
Defendant Shavolian asserts numerous objections to interrogatories that do not seek
7 of 13
8
privileged material. For example, in Plaintiff Sherina Thomas’s Interrogatory No. 4, Plaintiff
Thomas sought the identity of all current or former employees who complained about or made a
claim against Defendant Shavolian for sex-based discrimination or sexual harassment. See, Ex. C,
Kaupp Aff. Attorney-client and attorney work product privileges cannot protect against disclosure
of third party complaints made against Defendant that are in his possession, custody or control.
D. Defendant Shavolian Failed to Produce Substantive Responses in Good Faith
1. Defendant Shavolian’s witness disclosures are deficient
Defendant Shavolian, other than “assuming” he and the Plaintiffs will testify at trial, fails to
identify a single additional witness. See, Ex. K, Kaupp Aff. If Defendant Shavolian fails to
supplement or amend his witness disclosures, Plaintiffs will seek an order prohibiting Defendant
Shavolian from proffering testimony from anyone other person at trial. See, CPLR § 3126.
2. Defendant Shavolian’s responses to the discovery propounded by Plaintiff
Thomas are deficient
As to Plaintiff Thomas’s interrogatories, Defendant Shavolian failed to provide substantive
responses to 17 of the 20 interrogatories propounded by Plaintiff Thomas. See, Ex. L, Kaupp Aff.
Of the three interrogatories to which he did provide a substantive response – Nos. 1, 18 and 20 –
two are woefully inadequate. Id.
As to Plaintiff Thomas’s requests for production of documents, the only documents
identified by Defendant Shavolian are those produced by Defendant EONY, LLC. See, Ex. M,
Kaupp Aff. Notably, Plaintiff Thomas requested information from Defendant Shavolian that may
be in his sole custody, possession, or control. For example, documents that concern his
involvement in the modeling industry, photographs or video recordings of Plaintiff, conversations
between Defendant Shavolian and any other person concerning Plaintiff, or Plaintiff’s claims,
among other relevant information. By way of further example, Plaintiff requested all documents
8 of 13
9
that reflect any complaints against him for discrimination or sexual harassment by any employee,
independent contractor, subcontractor, or agent in the last ten years. This would include
complaints by any person who worked for Defendant at his residence or at another company.
Defendant Shavolian’s failure to provide substantive responses concerning information that
is clearly material and necessary evinces bad faith. However, there is nothing more illustrative of
Defendant’s bad faith then the fact that Defendant Shavolian copied and pasted Defendant
EONY’s responses into his responses to Plaintiff Thomas’s Requests for Production of Documents
and Interrogatories: Plaintiff Thomas’s interrogatories to Defendant Shavolian numbered 9 through
13 and 15 were different than those served on Defendant EONY. Compare, Ex. L with Ex. P
(Defendant EONY LLC’s Responses and Objections to Plaintiff Sherina Thomas’s First Set of
Interrogatories), Kaupp Aff. Compare also, Ex. M with Ex. Q (Defendant EONY, LLC’s
Responses and Objections to Plaintiff Sherina Thomas’s First Request for Production of
Documents), Kaupp Aff.
This is problematic because Plaintiff Thomas did not propound the same interrogatories to
each Defendant and because Defendant EONY’s responses were verified by another individual.
Further, this also makes clear that Defendant Shavolian never sought additional time in order to
respond. In fact, it is clear that Defendant Shavolian made absolutely no effort, much less a good
faith one, to respond to the discovery propounded by Plaintiff Thomas.
Accordingly, Defendant Shavolian failed to provide responses that substantially comply
with the discovery rules when he (1) failed to provide any substantive responses to Interrogatory
Nos. 2, 4, 5, 6, 7, and 8 and (2) provided responses to Interrogatory Nos. 10 through 20 that were
simply copied and pasted from Defendant EONY’s responses and nonresponsive to these
interrogatories.
9 of 13
10
3. Defendant Shavolian’s responses to the discovery propounded by Plaintiff
Mendez are deficient
As a preliminary matter, Defendant Shavolian’s responses to the interrogatories
propounded by Plaintiff Mendez are deficient because he failed to set forth the interrogatories
along with his responses in violation of CPLR § 3133(b). See, Ex. G, Kaupp Aff.
Second, Defendant Shavolian failed to object to Plaintiff Mendez’s interrogatories
numbered 1 through 7, and 9. See, Id. As a result, he has waived any objection to these
interrogatories and must provide substantive responses. Despite failing to object, Defendant
Shavolian provided incomplete responses. For example, in response to Interrogatory No. 1, which
asks him to identify all persons with “knowledge of the facts and circumstances alleged in the
Complaint,” he responded, “None.” See, Ex. G, Kaupp Aff. If Defendant Shavolian continues to
fail to identify witnesses in violation of an order of this Court, Plaintiffs will seek one or more
orders from the Court under CPLR § 3126(1)-(3).
As a result of Defendant Shavolian’s refusal to answer Interrogatory No. 1, his responses to
Interrogatory Nos. 2 and 3 and are also deficient. See, Id. His response to No. 4 is deficient because
he fails to provide his job title, the nature of the work he performs, and his dates of employment
along with other missing information. See, Id. In fact, Defendant Shavolian’s responses to
Interrogatory Nos. 1 through 5, 8, 10 and 12 are all deficient in substance. See, Exs. G and N,
Kaupp Aff.
Finally, as with Defendant Shavolian’s responses to Plaintiff Thomas’s requests for
production of documents, his responses to Plaintiff Mendez’s requests are also deficient. Other
than two audio recordings that do not play on Windows Media Center (a common application that
comes standard with all PCs) Defendant Shavolian has solely relied on Defendant EONY’s
production and has failed to produce a single document. See, Exs. O and Q, Kaupp Aff. ¶ 19.
10 of 13
11 of 13
12
TO:
Claude Castro, Esq.
D. Paul Martin, Esq.
CLAUDE CASTRO & ASSOCIATES PLLC
545 Fifth Avenue, 8th Floor
New York, NY 10017
George C. Morrison, Esq.
Scott H. Casher
WHITE AND WILLIAMS LLP
7 Times Square, Suite 2900
New York, NY 10036-6524
12 of 13
13
SUPREME COURT OF THE STATE OF NEW YORK Index No. 158961/2013
COUNTY OF NEW YORK
------------------------------------------------------------------------X
SHERINA THOMAS and DIANDRA MENDEZ,
Plaintiffs,
-against-
EONY LLC, and DAVID SHAVOLIAN, individually,
Defendants.
------------------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL
DISCOVERY FROM DEFEDNAT DAVID SHAVOLIAN
KAUPP & FEINBERG, LLP
870 Market Street, Suite 646
San Francisco, CA 94102
(415) 896-4588
Attorneys for Plaintiffs
ARCÉ LAW GROUP, PC
30 Broad Street, 35th Floor
New York, NY 10004
(212) 248-0120
Attorneys for Plaintiffs
13 of 13