Niceforo v. Ubs Global Asset Mgmt. Americas, Inc.

• Decision Date: 16 May 2014
• Docket Number: Nos. 12 Civ. 0033(KPF)(FM), 12 Civ. 4830(KPF)(FM).,s. 12 Civ. 0033(KPF)(FM), 12 Civ. 4830(KPF)(FM).
• Citation: 20 F.Supp.3d 428
• Parties: Nicole C. NICEFORO, Plaintiff, v. UBS GLOBAL ASSET MANAGEMENT AMERICAS, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

20 F.Supp.3d 428

Nicole C. NICEFORO, Plaintiff,

v.UBS GLOBAL ASSET MANAGEMENT AMERICAS, INC., Defendant.

Nos. 12 Civ. 0033(KPF)(FM), 12 Civ. 4830(KPF)(FM).

United States District Court, S.D. New York.

Signed May 16, 2014

Motion denied. Neil H. Greenberg, Sr., Justin Marc Reilly, Neil H. Greenberg & Associates, P.C., Westbury, NY, for Plaintiff.

Thomas Anton Linthorst, Ashley Jean Hale, Richard Jasaitis Hamilton, III, Morgan Lewis & Bockius LLP, Princeton, NJ, for Defendant.

ORDER

FRANK MAAS, United States Magistrate Judge.

In these companion actions, plaintiff Nicole Niceforo (“Niceforo”) alleges that UBS Global Asset Management Americas, Inc. (“UBS”) compensated her improperly under the Fair Labor Standards Act (“FLSA”) and fired her for exercising her rights under the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”). Currently before the Court is Niceforo's motion to preclude UBS from using for any purpose a notebook found in her desk after her termination. (12 Civ. 4830, ECF No. 26).

Niceforo maintains that the notebook belonged to her and that the manner in which UBS obtained it constitutes conversion and larceny. She further alleges that the notebook contains privileged attorney-client communications. UBS counters that the notebook cannot be considered Niceforo's personal property because it was located within her UBS work space, and that even if it was, UBS obtained it properly. UBS further contends, inter alia, that Niceforo waived any claim of privilege due to her delay in seeking the notebook's return. As explained below, UBS did not obtain the notebook improperly. Additionally, Niceforo has failed to establish and also has waived any claim of privilege with respect to its contents. Niceforo's motion to preclude therefore is denied.

I. Background

Niceforo began her employment with UBS in 2007. (Pl.'s Ex. B (“Niceforo Dep.”) at 31).¹ While employed with UBS, Niceforo worked at a cubicle in an open work space. (Declaration of Thomas A. Linthorst, dated March 7, 2014 (“Linthorst Decl.”) (filed under seal), Ex. 27). On or about July 13, 2011, Niceforo went on a medical leave from which she returned on October 3, 2011. (Pl.'s Ex. C (“Kishimoto Dep.”) at 118–19). UBS put Niceforo “on probation” on October 6, 2011, and gave her a “final warning” six days later. (Pl.'s Exs. A (“Foglia Dep.”) at 265, E). Then, on October 20, 2011, Niceforo's manager, Marilyn Foglia (“Foglia”) and a representative from the Human Resources Department, Mika Kishimoto (“Kishimoto”), summoned Niceforo to a conference room at UBS and terminated her employment. Niceforo was not permitted to return to her desk. (Kishimoto Dep. at 238–39). Instead, Foglia and Kishimoto asked Niceforo what personal belongings she would need in order to leave. Niceforo asked for her bag and shoes, and possibly her coat, which Foglia retrieved. (Foglia Dep. at 303). Niceforo also requested food items from the office refrigerator which were provided. (Linthorst Decl. Ex. 9 at 240). She then was escorted from the building. ( See Foglia Dep. at 302).

Earlier in 2009, Niceforo began keeping a “log” in response to complaints about her work. (Linthorst Decl. Ex. 3 at 99–101). She generally wrote down her arrival and departure time and made notes regarding projects. ( Id.). The notebook that is the subject of her motion constitutes the last of the logs. ( Id. at 229).

When Niceforo arrived home after her termination, she noticed that the notebook was not among her belongings. ( Id. at 238). Over the following days, UBS staff collected other personal items from Niceforo's desk and sent them to her. ( See Foglia Dep. at 304; Kishimoto Dep. at 242). The notebook was not in those shipments either. (Linthorst Decl. Ex. 3 at 241).

In late October or early November, UBS assigned Alex Severis (“Severis”), an intern, to work at Niceforo's former work station. ( See Foglia Dep. at 305–06). In or around November 2011, Severis found the notebook in a desk drawer. (Linthorst Decl. Ex. 12). After Foglia returned to the office, Severis gave the notebook to her. ( Id.). Foglia then turned the notebook over to Kishimoto. (Pl.'s Ex. I (“Second Kishimoto Dep.”) at 2; see Foglia Dep. at 307). Kishimoto knew that litigation involving Niceforo was pending, so she provided the notebook to UBS's in-house counsel, Jenny Stuart. (Second Kishimoto Dep. at 8). The original notebook remained in the possession of UBS's counsel until January 2013. (Pl.'s Ex. J at 5).

On July 12, 2012, UBS made its first document production in the FLSA litigation, in which it included a copy of the notebook. (Linthorst Decl. ¶ 16). Niceforo, however, first reviewed those documents after UBS made its first document production in the ADA/FMLA case on December 21, 2012. (Pl.'s Mem. at 5).

Niceforo's counsel wrote two letters to UBS soon after her dismissal which made no mention of the notebook. In the first such letter, sent in October, counsel informed UBS that, absent a response from UBS, they would “proceed formally with [Niceforo's] claims at the agency level so as to satisfy the prerequisite for federal court.” (Linthorst Decl. Ex. 7). Although counsel cautioned UBS to “retain all documents relevant to this action in anticipation of such suit,” there was no request for the return of the notebook. ( Id. at 3). A second letter in December 2011 also failed to request the notebook's return. ( Id. Ex. 10). Indeed, it was not until January 8, 2013, that counsel asked for the first time that the notebook be returned. ( Id. Ex. 15). By letter dated January 17, 2013, UBS stated that it was returning the notebook under separate cover although it claimed that it had “no obligation to do so.” (Linthorst Decl. Ex. 16). UBS nevertheless retained a copy of the notebook. (Def.'s Mem. at 8).

II. DiscussionA. Legality of UBS's Acquisition of the Notebook

A court has the “inherent authority to sanction a party who attempts to use in litigation material improperly obtained outside the discovery process.” Fayemi v. Hambrecht and Quist, Inc., 174 F.R.D. 319, 324 (S.D.N.Y.1997). Before exercising this authority, however, the Court must find that the material was obtained improperly. Courts will not preclude the use of evidence procured outside of normal channels without any indication of wrongdoing. See id. at 324–25; Schlaifer Nance & Co. v. Estate of Warhol, 742 F.Supp. 165, 166 (S.D.N.Y.1990) (“Neither the Federal Rules of Civil Procedure nor courts' inherent powers support an order prohibiting use of information innocently obtained from third parties without use of judicial process.”) (emphasis added). Niceforo claims that she is entitled to preclusion because the manner in which UBS obtained her notebook constitutes both conversion and larceny. Neither contention withstands scrutiny.

1. Conversion

Under New York law, “[c]onversion is the ‘unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights.’ ” Vigilant Ins. Co. of Am. v. Hous. Auth. of City of El Paso, 87 N.Y.2d 36, 44, 637 N.Y.S.2d 342, 660 N.E.2d 1121 (1995) (quoting Empl'rs' Fire Ins. Co. v. Cotten, 245 N.Y. 102, 105, 156 N.E. 629 (1927)). A plaintiff must plead two key elements to establish a conversion claim: “[a] [the] plaintiff's possessory right or interest in the property and [b] [the] defendant's dominion over the property or interference with it, in derogation of plaintiff's rights.” Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 50, 827 N.Y.S.2d 96, 860 N.E.2d 713 (2006) (internal citations omitted). Fault need not be shown. Cruz v. TD Bank, N.A., 855 F.Supp.2d 157, 174 (S.D.N.Y.2012) (citing LoPresti v. Terwilliger, 126 F.3d 34, 42 (2d Cir.1997)). If the converter acquires the property lawfully at the outset, “ ‘a conversion does not occur until the defendant refuses to return the property after demand.’ ” Schwartz v. Capital Liquidators, Inc., 984 F.2d 53, 54 (2d Cir.1993) (quoting Johnson v. Gumer, 94 A.D.2d 955, 464 N.Y.S.2d 318, 319 (4th Dep't 1983)).

It is undisputed that Niceforo voluntarily brought the notebook into the workplace and did not make any demand for its return until January 8, 2013, more than one year after her termination and six months after UBS had produced a copy of it to her as a part of its first document disclosure. Once Niceforo requested the original notebook, UBS promptly complied. UBS therefore acquired the property lawfully at the outset because Niceforo herself brought it to UBS's offices and left it there.² When Niceforo finally demanded the return of the notebook through counsel, UBS did not refuse her request. It follows that no conversion occurred.

2. Larceny

Under New York law, larceny “includes a wrongful taking, obtaining or withholding of another's property,” with the intent to deprive the owner of that property. N.Y. Penal L. § 155.05. A person can commit the crime of larceny by exercising control over property that “he knows to have been lost or mislaid ... without taking reasonable measures to return such property to the owner.” Id. An owner is “deprived” of property when, inter alia, someone “dispose[s] of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.” N.Y. Penal L. § 155.00(3)(b). The “intent to deprive” element of the crime thus cannot be satisfied simply by establishing “an intent temporarily to use property without the owner's permission, or even an intent to appropriate outright the benefits of the property's short-term use.” People v. Jennings, 69 N.Y.2d 103, 119, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986).

Niceforo cannot show that UBS knew prior to January 8, 2013, that she had “lost or mislaid” the notebook, since she never had made any demand for its return despite having sought the return of other personal items. There also has been no showing that UBS had any intent to deprive...