Opinion
602192/03.
Decided March 8, 2010.
In this employment discrimination action, defendants Israel Discount Bank of New York ("The Bank"), Edmond Eskenazi ("Eskenazi"), Elena Basante ("Basante"), Joseph Cortes ("Cortes"), Julio Berger ("Berger"), Ari Sheer ("Sheer"), and Roger Maglio ("Maglio") (together, the "Defendants") move, by an order to show cause, pursuant to CPLR § 3103(a) and § 3123, for an order: (1) granting them a protective order so that they need not respond to plaintiff's Notice to Admit, dated August 7, 2009, and (2) striking the Notice to Admit in its entirety. Plaintiff Jacob Ahroner ("Ahroner") opposes this motion or, alternatively, cross moves for leave to conduct further discovery pursuant to Section 202.21(d) of the Uniform Rules of Trial Courts.
Background
This action is based on, inter alia, allegations that the termination of Ahroner's employment from the Bank was discriminatory based on his age, race, and/or religious orientation. During all relevant periods, defendants Bastante and Cortes were Ahroner's supervisors in the Bookkeeping Department, and reported to defendant Berger, who is a First Senior Vice President at the Bank, responsible for supervision of the Bookkeeping Department. Berger reported to defendant Eskenazi who is the Bank's Division Executive overseeing the Booking Department. Defendant Sheer was the Bank's President and defendant Maglio was the head of Human Resources.
According to the complaint, the discriminatory conduct against Ahroner, who had been employed by the Bank since 1987, began in 1992, when he began to work at the Bank's Bookkeeping Department. It is alleged that the discriminatory conduct occurred from 1992 until Ahroner was terminated on November 8, 2002 at age 59.
This action was commenced on July 11, 2003. The discovery process has been extensive and arduous and has involved the court's appointment of a special referee and a judicial hearing officer. Discovery in this action has revealed that Ahroner and another employee of the Bookkeeping Department were terminated in November 2002, along with twenty-three other employees, as part of a reduction in force at the Bank. Ahroner maintains that the evidence shows that his termination, along with four other employees ages 52 to 76 serving under Berger was discriminatory, and asserts that shortly before his termination six younger Hispanic employees were hired in the Bookkeeping Department. The Bank maintains that Ahroner's termination was part of an overall plan to help the Bank remain profitable, and that Ahroner's position as a clerk in the Bookkeeping Department was eliminated as his functions were being automated.
Ahroner testified at his deposition that Bastante and Cortes made anti-Semitic comments to him. In addition, Rachel Asseoff, who was another Jewish employee in the Bookkeeping Department, testified that while she did not hear Bastante make anti-Semitic remarks to her, she heard from Hispanic employees at the Bookkeeping Department that Bastante "mumbles those Jews or something like that." However, during their depositions, Bastante and Cortes denied making anti-Semitic comments about Ahroner and the other individual defendants denied being aware that Bastante or Cortes made such comments.
Ahroner requested all emails relating to Ahroner. An interim discovery order dated September 29, 2004 directed that the Bank produce all emails relating to Ahroner's discharge.
After conducting a search for such emails, the Bank produced no emails in response to this request, asserting that its employees searched their files "including computer files and archived files" and were unable to locate responsive documents "other than what . . . has been previously produced to plaintiff." (December 8, 2004 Affidavit of Susan Rinalidi, First Vice President of Personnel ¶ 3). Between November 2006 and June 2007, the Bank submitted affidavits from various employees, representing that a search for the emails had been conducted and none had been found.
Ahroner took 15 depositions of Bank employees, including the depositions of the four individual defendants who were named in the complaint. Ahroner 's counsel asked the deponents about their searches of electronic evidence pertaining to Ahroner's claims as well as their shared e-mail uses and retention practices.
On February 28, 2007, Ahroner took the deposition of Andrew Landi ("Landi"), the Bank's First Vice President of Information Technology ("IT") Bank since January 2004. At his deposition, Landi testified that P.C. computers which had been used since approximately 1994, were upgraded in 2000 or 2001, and that the Bank was "in the process of [another] upgrade [in 2007]," and the hard drives of the computers were not being preserved unless requested. (Landi EBT, at 16). Upon hearing this testimony, Ahroner's counsel requested that the hard drives of the individual defendants be preserved. Landi also testified that in general the email was saved not to the hard drive but to the server, of which a back up tape is made which is generally preserved for one year. Counsel for the Bank commented that the search of the hard drives of the individual defendants had already been conducted. Following Landi's deposition, Ahroner did not request to inspect the hard drives of any individual defendants other than Basante.
On May 10, 2007, the court expanded its September 24, 2004 directive and ordered that all e-mails, notes, and correspondence regarding Ahroner be preserved. On that date, Ahroner also requested that Basante's hard drive be preserved, but did not request the preservation of the hard drives of any of the other defendants. In August 2007, the court issued an order directing the Bank to produce Basante's hard drive for inspection by a forensic expert. Peter J. Theobald was subsequently appointed as the forensic expert by this court. However, Mr. Theobald's examination of Basante's hard drive revealed that it had been wiped clean during an upgrade of her computer.
On April 16, 2008, Counsel for plaintiff, Edward Gewirtz ("Gewirtz"), wrote a letter to defendant's counsel Mary Gambardella ("Gambardella"), stating that it was his understanding that "all of the hard drives of [Bank] employees for year 2002 and prior have been wiped clean.'" Gewirtz asked Gambardella to advise him if his understanding was incorrect and that, if he received no response, he would proceed with this understanding. Gambardella received the letter and did not respond to it. In connection with this motion, Gambardella denies that her silence meant that the hard drives had not be preserved.
On June 30, 2008, Ahroner filed a Motion for Sanctions (the "Spoliation Motion"), which sought, inter alia, spoliation sanctions based on the purported willful destruction of certain evidence, including Basante's hard drive and certain back-up tapes on the Bank's server. By decision and order dated July 9, 2009, the Court granted Ahroner's motion to the extent of holding that Ahroner is entitled to an adverse inference instruction at trial with respect to the e-mails on Basante's hard drive. In the Spoliation Motion, Ahroner mentioned the alleged destruction of the hard drives of individual defendants other than Basante, but as the court noted in its July 9, 2009 decision, "there is no evidence that these hard drives which Ahroner never sought to inspect were destroyed" (July 9, 2009 decision at 10, fn. 6).
The court also held that Ahroner could seeks sanctions with respect to employee lists at the time of trial.
Ahroner did not seek further discovery after the issuance of the July 9, 2009 decision, but filed a Note of Issue and Certificate of Readiness certifying that "discovery proceedings now known to be necessary are completed" and that "there are no outstanding requests for discovery" and that "there has been reasonable opportunity to complete the foregoing proceedings".
On August 7, 2009, four days after certifying that discovery was completed, Ahroner served the defendants with the Notice to Admit requesting that defendants admit that they no longer have the hard drives of Cortes, Eskenazi, Berger, Sheer, or Maglio or a forensically sound image of such hard drives. On August 17, 2009, Ahroner filed a Notice of Appeal of this Court's July 9 Order, stating in part that the Court erred in not finding spoliation of all the named individual defendants' hard drives.
Defendants now seek a protective order so that they need not respond to the Notice to Admit and an order striking the Notice to Admit. They assert that a protective order is appropriate because Ahroner's purpose in issuing the Notice to Admit is to circumvent the close of discovery in order to obtain additional information and supplement the record in regard to the existence of the hard drives for his appeal of the July 9 decision.
Ahroner opposes the motion, arguing that the Notice to Admit was issued at a proper time for reasons permissible following the filing of the Note of Issue. Specifically, Ahroner asserts that the Notice to Admit is proper because it seeks to crystallize issues for trial involving admissions regarding facts about which he reasonably believed there was no dispute, namely that the hard drives no longer exist. Ahroner states that his reasonable belief regarding the destruction of the hard drives was based on: (1) the wiping clean of Basante's hard drive, and (2) Gambardella's failure to respond to Gewirtz's letter, dated April 16, 2008, in which he stated his understanding that the hard drives of all Bank employees had been wiped clean. Ahroner further argues that the defendants oppose the motion because they do not want to admit that they destroyed the other hard drives.
Ahroner also contends that although the admissions sought in the Notice to Admit may have relevance to the appeal with respect to the Spoliation Motion, this fact does not mean that the Notice to Admit is improper. In the alternative, Ahroner cross moves for leave to conduct further discovery under Section 202.21(d) of the Uniform Rules of Trial Courts, asserting that he did not anticipate that the defendants would take the position that these issues were in dispute following his filing of the Note of Issue or that the court would agree with the defendants' position. Moreover, Gerwitz argues that he believed that he could seek to establish the destruction of the hard drives by a Notice to Admit, even after filing the Note of Issue and Statement of Readiness.
In reply, the defendants assert that it cannot be said that they admitted to destroying the hard drives based on Gambardella's decision not to respond to the April 16, 2008 letter from Gerwitz. Defendants further argue that the existence or non-existence of the hard drives is not the critical issue but, rather, whether Ahroner's Notice to Admit is proper. The defendants argue that Ahroner's cross motion underscores that the Notice to Admit is being improperly used as a discovery device.
Discussion
CPLR § 3103(a) provides that the court may, on its own initiative or on motion of any party or of any person from whom discovery is sought, make a protective order denying, limiting, conditioning, or regulating discovery. Protective orders are designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or to the courts. CPLR § 3103(a). Notices to Admit are included within the disclosure devices contemplated by CPLR § 3103(a) and, as such, the court may grant a protective order that a party need not respond to a Notice to Admit and/or that a Notice to Admit be stricken. See e.g. Handy v. Geften Realty, 129 AD2d 556, 557 (2nd Dept 1987).
CPLR § 3123 permits, in part, requests for admissions ". . . as to the truth of matters of fact set forth in the request, as to which the party requesting admission reasonably believes there can be no substantial dispute at the trial and which are in the knowledge of the other party or can be ascertained by him upon reasonable inquiry." Although Notices to Admit qualify as disclosure devices under CPLR § 3103(a), the First Department's rulings indicate that Notices to Admit are more in the nature of stipulations than discovery devices. See Hodes v. City of New York, 165 AD2d 168, 169-171 (1st Dep't 1991); Lewis v. Hertz Corp., 193 AD2d 470, (1st Dep't 1993). Notice to Admit are intended "to crystallize issues for trial and to eliminate from trial those that are easily provable or not really in dispute," and not to obtain information in lieu of other disclosure devices. Hodes at 170; see also, Taylor v. Blair, 116 AD2d 204, 206 (1st Dept 1986) ("a notice to admit may not be used as a substitute for other disclosure devices . . .").
Under CPLR § 3123, a party may serve a Notice to Admit upon another party at any time after service of the answer or after the expiration of twenty days from service of the summons, whichever is sooner, and not later than twenty days before the trial. Thus, a Notice to Admit may be served after the Note of Issue is filed. The First Department has held that "no substantive collision" exists between the rule governing the time for service of a Notice to Admit under CPLR § 3123 and the court rule disallowing further discovery following the filing of the Note of Issue and Certificate of Readiness, given that the Notice to Admit is intended to "procure a stipulation . . . regarding certain specific matters concerning which there is general agreement and whose exclusion as an issue to be litigated will serve to expedite trial."
Hodes, at 170-171.
In this case, even assuming arguendo that the existence or non-existence of the subject hard drives could be ascertained by the Bank upon reasonable inquiry, the Notice to Admit is improper as any response to it will not serve to exclude factual issues from trial or otherwise expedite trial. To the contrary, any response to the Notice to Admit will only raise new issues that should have been resolved during the six years of discovery in this matter. Thus, for example, if the hard drives exist, any information that the hard drives might contain that would be relevant to Ahroner's claims would not be available without further discovery. On the other hand, if the hard drives have been erased, additional information would be needed to ascertain the reasons for the failure to preserve the hard drives to determine if a spoliation instruction would be appropriate. Furthermore, to the extent Ahroner seeks the use the Notice to Admit to assist him in his appeal of the court's decision on the Spoliation Motion, such use is inconsistent with the purpose of an Notice to Admit.
In reaching its decision, the court notes that the record demonstrates that Ahroner had an ample opportunity to obtain the information about the hard drives of the individual defendants other than Bastante during discovery. Thus, Ahroner could have requested the preservation of the hard drives of all the individual defendants at the May 10, 2007 court conference, and sought inspection of the hard drive of the individual defendants and not just that of Basante's hard drive. In addition, while the court's decision on the Spoliation Motion noted Ahroner's failure to seek evidence related to the individual defendants' hard drives other than that belonging to Bastante, Ahroner did not request inspection of these hard drives but instead filed his note of issue and certificate of readiness. Finally, the lack of response by the Bank's counsel to the letter from Ahroner's counsel stating that it was his understanding that the hard drives that are now the subject of the Notice to Admit had been erased, cannot be considered a substitute for discovery on the issue of the existence of the hard drives. Under these circumstances, defendants' request for a protective order is granted, and they need not respond to the Notice to Admit.
Ahroner alternatively cross moves for further discovery under Section § 202.21(d) of the Uniform Rules. Under Section 202.21(d), a court may grant permission to conduct further pre-trial discovery"[w]here unusual or unanticipated circumstances develop subsequent to the filing of a [N]ote of [I]ssue and [C]ertificate of [R]eadiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings." Ahroner has not demonstrated his entitlement to relief under this section, as he has not pointed to any unusual or unanticipated circumstances that would warrant further discovery after the filing of the note of issue. To the contrary, as indicated above, the record shows that during the six years of protracted discovery, Ahroner became aware of the issue regarding these hard drives but chose not to seek discovery regarding them.
Under these circumstances, Ahroner has not shown that he is entitled to relief under Section 202.21 (d). See Schroeder v. IESI NY Corp. , 24 AD3d 180 (1st Dept 2005) (trial court should have denied defendants' request for a supplemental deposition of plaintiff and a further medical examination of plaintiff pursuant to Section 202.21(d) when the record showed that defendants were aware of plaintiff's additional injuries which provided the basis for the further discovery request for 11 months prior to filing of the note of issue); Simpson v. K-Mart Corp., 245 AD2d 991, 992 (3d Dept 1997), lv denied, 91 NY2d 813 (1998) (trial court properly denied defendant's request for additional discovery under Section 202.21(d) of the Uniform Rules, stating that "despite the death of its expert, defendant had an adequate opportunity to conduct discovery prior to the filing of the note of issue to develop evidence").
Conclusion
In view of the above, it is
ORDERED that defendants Israel Discount Bank of New York, Edmond Eskenazi, Elena Basante, Joseph Cortes, Julio Berger, Ari Sheer, and Roger Maglio are granted a protective order that they need not respond to Jacob Ahroner's Notice to Admit; and it is
ORDERED that Jacob Ahroner's Notice to Admit be stricken in its entirety; and it is further
ORDERED that Jacob Ahroner's cross motion for further discovery pursuant to Section 202.21(d) of the Uniform Rules of Trial Courts is denied.