Loguidice v. McTiernan

• Decision Date: 25 August 2016
• Docket Number: 1:14-CV-1323 (TJM/CFH)
• Parties: ANDREA D. LOGUIDICE, Plaintiff, v. EDWARD MCTIERNAN, STUART BRODY, BENJAMIN CONLON, MARLINE AGNEW, DEBORAH CHRISTIAN, PHIL LODICO, MARC GERSTMAN, and JOHN DOES 1-5, Defendants.
• Court: U.S. District Court — Northern District of New York

ANDREA D. LOGUIDICE, Plaintiff, v. EDWARD MCTIERNAN, STUART BRODY, BENJAMIN CONLON, MARLINE AGNEW,DEBORAH CHRISTIAN, PHIL LODICO, MARC GERSTMAN, and JOHN DOES 1-5, Defendants.

1:14-CV-1323 (TJM/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 25, 2016

APPEARANCES:

BOIES SCHILLER & FLEXNER LLP

30 South Pearl St., 11^th Fl.

Albany, New York 12207

Attorneys for Plaintiff

NAPOLI SHKOLNIK PLLC

360 Lexington Avenue, 11^th Fl.

New York, New York 10017

Attorneys for Plaintiff

NEW YORK STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

OF COUNSEL:

GEORGE F. CARPINELLO, ESQ.

JOHN F. DEW, ESQ.

MICHAEL T. HAWRYLCHAK, ESQ.

COLLEEN D. GALLIGAN, ESQ.

LOUIS JIM, ESQ.

MEMORANDUM-DECISION AND ORDER

Presently pending before the Court is plaintiff Andrea D. Logudice's ("plaintiff") motion to compel defendants to provide various testimony and documents that she claims are not barred by the attorney-client privilege. Dkt. No. 41. Defendants Edward McTiernan ("McTiernan"), Stuart Brody ("Brody"), Benjamin Conlon ("Conlon"), Marline Agnew ("Agnew), Deborah Christian ("Christian"), Phil Lodico ("Lodico"), and Marc Gerstman ("Gerstman") (collectively, "defendants," where appropriate) oppose the motion. Dkt. No. 42. Nonparties the New York State Department of Environmental Conservation ("DEC"), The Governor's Office on Employee Relations ("GOER"), Maureen Coleman, and Ann Hohenstein (collectively, "non-parties," where appropriate), also oppose. Dkt. No. 43. Plaintiff filed a reply. Dkt. No. 44. For the reasons that follow, plaintiff's motion to compel is granted in part and denied in part.

I. Background

A. Procedural Background

As relevant here, on October 15, 2015, plaintiff filed a letter motion "request[ing] the Court's assistance in resolving discovery disputes regarding communications among Defendants about which Defendants have declined to testify at depositions on the basis of privilege." Dkt. No. 27 at 1.¹ Plaintiff provided that defendants "repeatedly asserted the attorney-client and work-product privileges as the basis for their refusal toanswer questions about virtually any substantive discussions had within the Department of Environmental Conservation ("DEC") regarding the decision to terminate Plaintiff from her employment at DEC." Id. Plaintiff argues that the conversations about which she sought to inquire were not privileged because: (1) "these discussions concern business activities within the DEC, not legal advice, and the discussions are therefore not privileged"; (2) "Defendants have waived their claim of privilege by asserting an affirmative defense that puts any legal advice they received regarding the decision to terminate Plaintiff at issue"; and (3) "Defendants have waived any privilege they might have had as to those discussions regarding the decision to terminate Plaintiff by producing documents that reveal portions of those discussions and/or the advice received." Id. Defendants requested a stay of depositions "pending resolution of these issues." Dkt. No. 28. Plaintiff joined the request to stay. Id. The Court granted the stay of depositions pending further Order of the Court. Dkt. No. 30.

On October 23, 2015, defendants responded to plaintiff's October 15, 2015 letter motion, Dkt. No. 27. Dkt. No. 32. Also on October 23, non-parties responded to plaintiff's October 15, 2015 letter motion. Dkt. No. 33. On October 27, 2015, plaintiff filed a reply to defendants' and nonparties' responses. Dkt. No. 37. Parties appeared before the undersigned for a conference. Text Min. Ent. dated Oct. 30, 2015. The undersigned set briefing deadlines for a motion to compel regarding the issues raised in plaintiff's October 15, 2015 letter motion and defendants' October 23, 2015 response. Dkt. No. 40. The discovery deadline and motion filing deadline were stayed pending a decision on the motion to compel. Id.

B. Factual Background

The Court presumes the parties' familiarity with the facts of this case, and sets forth only those facts determined to be relevant in reviewing this motion. Plaintiff conducted a deposition of defendant Conlon on October 7 and October 8, 2015. Dkt. No. 41-2 at 1; Dkt. No. 41-3 at 2-26. On October 8, 2015, plaintiff conducted a deposition of defendant Lodico. Id. at 2. The parties refer to several documents provided during the discovery process. For ease of review during this Memorandum-Decision and Order, the Court will identify the documents attached to plaintiff's motion to compel.

1. Dkt. No. 41-3

Dkt. No. 41-3 is portions ofConlon's October 7, 2015 deposition.

2. Dkt. No. 41-4

Dkt. No. 41-4 is a memorandum from McTiernan, written to "File," dated August 5, 2014, titled Termination of Andrea Loguidice, with a header that reads "Not Subject to Foil." Dkt. No. 41-4. This memo, written on DEC letterhead, discusses how (1) plaintiff "received consulting from our Ethics Counsel (Stu Brody) about the important [sic] of avoiding any appearance of impropriety or otherwise creating any potential conflicts of interest" due to her "outside catering business"; (2) "Ben Conlon advised both me and Tom Berkman that the website maintained by Andrea's business contained an announcement that the business had recently catered an event for GE";(3) Ben Colon and Phil Lodico interviewing plaintiff to "get her side of the story" on or about July 11, 2014, and their belief that plaintiff's denial of knowledge about the work for GE was not credible; (4) McTiernan's August 5, 2015 discussions/meetings with Maureen Coleman, Anne Hohenstein ("DEC's contact at GOER"), Lori Belgrade ("Personnel"), Marc Cadrette ("Personnel"), Marc Gerstman, and Mike Valforte ("the GC at GOER"), and McTiernan's statement that '[t]he advice I received was that this error in judgment was serious enough to warranted [sic] discipline in the case of a full time employee and termination of an employee in probation"; and (5) the events of August 5, 2014 wherein plaintiff was terminated. Id.

3. Dkt. No. 41-5

Dkt. No. 41-5 is an undated and unsigned document titled "Information Requested by Anne Hohenstein" which asks "[w]hen was suit discovered?" and provies, "[a]fter offer made, but before start date. It was discovered by another Bureau Chief who Googled the candidate in connection with another job." Dkt. No. 41-5 at 2.

4. Dkt. No. 41-6

Dkt. No. 41-6 is an e-mail chain dated July 15, 2014 from Conlon to Brody, Christian, Lodico, and Thomas S. Berkman ("Berkman") titled "Andrea." Dkt. No. 41-6 at 2. The e-mail recounts a discussion between Conlon and plaintiff wherein plaintiff indicated that "she is no longer a majority shareholder for the company any more and had no control over what they did." Id. The e-mail includes Conlon's commentary thatit was "[a]mazing that this change in circumstance didn't come to light in all of the previous conversations she had with Stu. Of course she then told me the website had been taken down right after our meeting, so apparently control does exist when she wants it to." Id. The e-mail indicates Conlon's belief that "'appearance of impropriety' seems to be lost on [plaintiff]." Id. Finally, the e-mail states that Conlon was "not buying any of this" and that he "do[es]n't know if she can't see it or just wants to try to figure out a new excuse." Id.

5. Dkt. No. 41-7

This is a document titled "draft for review" from McTiernan, presumably to Conlon about Conlon's interest in pursuing outside employment as a CPA and the parameters he must follow to be within the guidelines of the Public Officer's Law and the April 26, 2012 General Counsel Memo. Dkt. No. 41-7 at 2-3.

6. Dkt. No. 41-8

Dkt. No. 41-8 is an unsigned document titled "CW: confidential conversation with Shari Calnero JCOPE 8 11 14." Dkt. No. 41-8 at 2. The document discusses that the author "raised issue whether sending documents to oneself under these circumstances constitutes disclosure of confidential information[,]" [t]hought it was important to determine if DEC has rule on unauthorized use[,]" "[s]he felt that the question of referral under Section 55 of the Executive Law turns not so much on whether there is a conflictof interest as whether the person was trying to conceal one or intentionally engaged in one[,]" "[a]nd that in terms of referring the matter, we should not refrain just because there is a fact, which if proved, could show the employee did not know, but rather whether the violation alleged if proved is clear[,]" and "[s]he raised question whether there is a nexus between that violation and her sending the documents to herself." Id. The document appears to have a redaction as well as a handwritten note that looks like it says, "confidential conversation with JCOPE & personal notes re: nature of violation." Id. It appears that Brody is the author of this document. Dkt. No. 42 at 17.

7. Dkt. No. 41-9

This is an undated, unsigned document titled "Personal Notes re her possible violations." Dkt. No. 41-9 at 2. The document, apparently authored by Brody, Dkt. No. 42 at 17,² indicates that the author "believe[s] we have reason to believe that she has violated several provisions of the law and this serves as a basis to exercise a right, if we need such a basis to terminate her as a probationary employee." Id. The author refers to "the issue of proof," which the author

believe[s] . . . lies in two principal facts within my knowledge: 1. That in November I went through each and every provision of the Code of Ethics as instructed by Ed and Tom to brief her on ethical obligations. 2. That in discussing with her responsibilities in light of her expanded role, I went through certain conditions and a discussion was held withregard to each one and to some she offered objections . . . but with regard to Number 1, and I emphasize it was number 1, she offered no objection.

Id. The author expressed a belief that "[n]ot knowing is not credible in view of these discussions." Id. Finally, the author indicated that, "[o]ne could ask, if she was...