Opinion
13-CV-5519 (AT) (KNF)
02-23-2016
RAYMOND A. MIRRA, JR., Plaintiff, v. GIGI JORDAN, Defendant.
MEMORANDUM AND ORDER
Before the Court is the plaintiff's unopposed motion, made "pursuant to Rules 37 and 45 of the Federal Rules of Civil Procedure compelling the production of document discovery and third-party discovery." The plaintiff contends that the defendant: (1) "failed to meet the deadline for substantial completion of document discovery"; and (2) "obstructed production of materials from third-party Colin Ross" ("Ross"), on the ground of relevance, despite the defendant's lack of standing to object on that basis. According to the plaintiff, the defendant produced "only 62 non-duplicative documents" in this action, in response to two sets of requests for document production. The defendant failed to produce "materials regarding Jude Mirra's medical history," as ordered by the Court, Docket Entry No. 66, except the medical records by Dr. Suzi Tortora, "or to produce a single document concerning her own mental health history," as requested in the first set of requests for production of documents ("FRP"), Nos. 51, 66-73, 83, 86-93. Moreover, the defendant failed to produce documents concerning: (a) her surveillance of the plaintiff, such as "invoices or checks for any of the people she hired" to conduct the surveillance, as requested in FRP, Nos. 103-117; (b) "the defamatory interview" to the Daily News, as requested in FRP, Nos. 2-9; (c) the plaintiff's "alleged attempts to hire Emil Tzekov to abuse Defendant's son," as requested in FRP, Nos. 11-12, 23-24, 32-33, 52 and 118; (d) the plaintiff's "alleged attempts to harass or harm Defendant," as requested in FRP, Nos. 16-18, 28-30, 37-38, 53, 74-76, 78-79 and 81-82; (e) the plaintiff's "reasons for establishing trusts for Jude Mirra," as requested in FRP, Nos. 10, 22, 31 and 54; (f) "the relationship between Jude and his biological father," as requested in FRP, Nos. 55-57; (g) the plaintiff's "family, employees, or businesses," as requested in FRP, Nos. 98-100; (h) the plaintiff's "alleged relationship to politically corrupt figures," as requested in FRP, No. 62; (i) "Hymes Harris, the man that Defendant claims [the plaintiff] hired to kill her," as requested in FRP, No. 84; (j) "the alleged investigations of [the plaintiff's] businesses," as requested in FRP, No. 133; (k) the defendant's "document retention policies and insurance policies," as requested in FRP, Nos. 122-123; and (l) "documents relied upon by Defendant in her criminal trial," as requested in FRP, Nos. 94-96 and 134. The plaintiff contends that the defendant should be compelled "to produce several items that are relevant to her surveillance efforts," including "any invoices or checks for any of the people she hired to surveil Mirra," and "any reports authored by any private investigator." The plaintiff asserts that the defendant made no objections or withdrew her objections with respect to the first set of document requests "following a meet-and-confer between the parties," and she never served any responses to the second set of document requests. The plaintiff contends that the defendant failed to collect documents from several custodians, namely, her attorney, Stephen Murphy, "the very person who arranged the defamatory interview between [the defendant] and The Daily News," and the paralegals "working for" the defendant, Heather Quinn, Jeanette Walsh, Lauren Vassallo and Michael Mitchell, who "authored several emails on [the defendant's] behalf to third parties, some of which may touch upon relevant subject matter." The defendant "also refused to allow the production of documents subpoenaed from third party Colin Ross, a psychiatrist with whom Defendant consulted regarding her son's disabilities and the founding of an institute." The plaintiff contends that the defendant should be compelled to cure her deficient document production because the documents requested are relevant to the instant action, including the defendant's claim that her son was abused, and the defendant should respond to all document requests to which she failed to object. The plaintiff asserts that the documents held by the defendant's attorney and paralegals are relevant and "within her possession, custody, and control." The plaintiff maintains that the defendant lacks standing "to obstruct" production of the materials subpoenaed from Ross, since the defendant and her son did not have a physician-patient relationship with him, and any privacy interest was waived when the defendant publicized her views regarding her son's sexual abuse and medical condition in multiple forums. Moreover, the subpoenaed materials are relevant to defamatory statements in this action. The plaintiff seeks an order directing the defendant to: (i) "complete document production by February 12, 2016"; (ii) "cease interference with Dr. Ross's subpoena and to limit her review of Dr. Ross's production to attorney-client privilege"; and (iii) pay the reasonable attorney's fees the plaintiff incurred in connection with this motion.
Legal Standard
"On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery." Fed. R. Civ. P. 37(a)(1). Specifically, "[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection" if "a party fails to produce documents or fails to respond that inspection will be permitted — or fails to permit inspection — as requested under Rule 34." Fed. R. Civ. P. 37(a).
Rule 45 of the Federal Rules of Civil Procedure allows for a subpoena to be issued commanding a person to whom it is directed to do the following at a fixed time and place: "attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises." Fed. R. Civ. P. 45(a)(1)(A)(iii). "At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection." Fed. R. Civ. P. 45(d)(2)(B)(i). Motions to compel are left to the court's sound discretion. See Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 488 (2d Cir. 1999).
Application of Legal Standard
First Set of Requests for the Production of Documents
(a) Jude Mirra's Medical Records
On October 14, 2015, the Court determined that Jude Mirra's medical records, within the care, custody and control of the medical providers enumerated in the October 14, 2015 order are relevant. (Docket Entry No. 66). The defendant failed to produce Jude Mirra's medical records from the enumerated providers, except for those of Dr. Suzi Tortora. Thus, compelling the defendant to produce Jude Mirra's medical records, as indicated in the October 14, 2015 order, is warranted.
(b) Defendant's Mental Health Records
The defendant's mental health records are relevant to the claims and defenses in this action, including to the defendant's state of mind at the time of the alleged defamatory statements at issue; thus, they must be produced.
(c) Surveillance Materials
The Court finds that any reports authored by private investigators engaged by the defendant to surveil the plaintiff are relevant to this action and must be produced. However, the Court does not find that "any invoices or checks for any of the people [the defendant] hired to surveil Mirra" are relevant to the claims and defenses in this action; they need not be produced.
(d) Documents Held by Stephen Murphy and the Defendant's Paralegals
The plaintiff contends that the defendant's attorney, Stephen Murphy, is "the very person who arranged the defamatory interview between [the defendant] and The Daily News," making citation to Exhibit 7, attached to his attorney's declaration in support of the motion, which contains "an email chain, containing my December 24, 2015 email to Mr. Brenner." However, Exhibit 7, contains only one mention of Stephen Murphy by the plaintiff's attorney, and does not show that Stephen Murphy is "the very person who arranged the defamatory interview between [the defendant] and The Daily News." Thus, the plaintiff did not demonstrate that any documents held by Stephen Murphy are relevant to this action.
The plaintiff relies on Exhibit 8, attached to his attorney's declaration in support of the motion, for the proposition that the defendant's paralegals "authored several emails on her behalf to third parties, some of which may touch upon relevant subject matter." The plaintiff asserts that Exhibit 8 contains "a true and correct copy of an email from Michelle Mitchell, a paralegal working for [the defendant], to Patrick Walsh, a broker, dated November 2, 2011." A review of Exhibit 8 shows e-mail communications that do not involve the plaintiff or his attorney, including the defendant's authorization to release certain documents to "Michelle Mitchell, Paralegal of the Law Office of Ronald L. Kuby." Although the plaintiff's attorney stated that her declaration is based on her personal knowledge of the facts set forth therein, she did not identify the source of that knowledge. Given that the communications contained in Exhibit 8 do not involve the plaintiff's attorney, she could not have personal knowledge of facts that do not involve her or her client. The Court is not convinced that the communications involving "Michelle Mitchell, Paralegal of the Law Office of Ronald L. Kuby," or any other individuals purported to be the defendant's paralegals, are relevant to this action. Thus, they need not be produced.
Second Set of Requests for the Production of Documents
The defendant failed to respond to the plaintiff's second set of document requests. Thus, compelling the defendant to do so is warranted.
Documents Subpoenaed from Ross
Although the plaintiff may move the Court for an order compelling the person commanded by the subpoena to produce the documents requested, see Fed. R. Civ. P. 45(d)(2)(B)(i), the plaintiff does not do so here; rather, the plaintiff seeks an order directing the defendant "to cease interference with Dr. Ross's subpoena and to limit her review of Dr. Ross's production to attorney-client privilege." No basis exists to compel the defendant to produce the documents subpoenaed from Ross. Neither Rule 45 nor Rule 26 of the Federal Rules of Civil Procedure provides any basis for an order directing the defendant "to cease interference with Dr. Ross's subpoena and to limit her review of Dr. Ross's production to attorney-client privilege." The plaintiff failed to make citation to any authority supporting the issuance of such an order. Therefore, no relief is warranted based on this ground.
Attorney's Fees
"If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion." Fed. R. Civ. P. 37(a)(5)(C). The plaintiff's motion is granted, in part, and denied, in part. Accordingly, an opportunity to be heard in connection with apportionment of the reasonable expenses for the instant motion is warranted.
Conclusion
The plaintiff's motion, Docket Entry No. 110, is granted, in part, and denied, in part, as explained above. It is ORDERED that:
(1) on or before March 1, 2016, the defendant produce the documents in accordance with this order;Dated: New York, New York
(2) on or before March 1, 2016, the plaintiff file his reasonable attorney's fees apportionment submissions;
(3) on or before March 8, 2016, the defendant may challenge the reasonableness of the plaintiff's attorney's fees apportionment; and
(4) on or before March 11, 2016, the plaintiff may reply to the defendant's challenge.
February 23, 2016
SO ORDERED:
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE