Horwitt v. Sarroff

          RULING ON DISCOVERY DISPUTE

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         On July 11, 2019, the Court held a telephonic discovery conference with Jed Horwitt, Esq. (“Plaintiff” or “the Receiver”), and Alan L. Sarroff, A.L. Sarroff Management, LLC (“Sarroff Mgmt.”), and A.L. Sarroff Fund, LLC (“Sarroff Fund”) (collectively, “Defendants”), to address a pending discovery dispute related to the testimony of two witnesses, Alan L. Sarroff and Larry Smith, in this action. Minute Entry, dated Jun. 11, 2019, ECF No. 130. The Receiver seeks to compel these witnesses, who were deposed in April 2019, to provide additional testimony that Defendants argue is protected from disclosure under the attorney-client privilege. Joint Motion for Status Conference, dated Jun. 7, 2019 (“Joint Mot.”), ECF No. 115.

         For the reasons explained below, the Court finds that the Receiver is not entitled to this additional testimony.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Familiarity with the facts and prior proceedings, as detailed in the Court’s May 10, 2019 Ruling denying Defendants’ motion to transfer venue or dismiss this case, is assumed. See Ruling on Motion to Transfer Venue or Dismiss, dated May 10, 2019, ECF No. 102, at 1–14.

         On June 7, 2019, the parties jointly moved for a telephonic discovery conference. Joint Mot. The parties sought the Court’s aid in resolving “the Receiver’s prospective motion to compel testimony (and the production of related documents) over Defendants’ objection based on (i) the crime-fraud exception to the attorney-client privilege; and (ii) the alleged overbreadth of certain other attorney-client privilege assertions made by Sarroff and Larry Smith (Sarroff Management’s Managing Member) at their depositions.” Id. at 1. The parties argue that there are two issues to resolve: “(1) The application of the crime-fraud exception to certain communications between Sarroff, Smith and Defendant’s counsel in late 2014 and late 2015;” and “(2) The application of the attorney-client privilege to certain matters concerning Sarroff’s and Smith’s knowledge and state of mind.” Id. at 3.

         On June 13, 2019, the Court granted the parties’ motion, ordering them to submit short briefs by June 14, 2019, outlining their respective positions on the discovery dispute. Order, dated Jun. 13, 2019. The Court scheduled a telephonic discovery conference for June 18, 2019. Id.

         On June 14, 2019, the Receiver filed his brief. See Plaintiff’s Statement of Position Regarding the Application of the Crime-Fraud Exception to the Attorney-Client Privilege and Scope of the Attorney-Client Privilege, dated Jun. 14, 2019 (“Pl.’s Br.”), ECF No. 118.

         On June 15, 2019, Defendants filed their brief. Defendants’ Statement Regarding the Application of the Crime-Fraud Exception to the Attorney-Client Privilege, dated Jun. 15, 2019 (“Defs.’ Br.”), ECF No. 129.

         On June 17, 2019, the Court continued the discovery conference sua sponte to June 27, 2019. Notice of E-Filed Calendar, dated Jun. 17, 2019, ECF No. 123.

         On June 25, 2019, the parties jointly moved to continue the discovery conference. Joint Motion, dated Jun. 25, 2019, ECF No. 126.

         On June 26, 2019, the Court granted that motion and continued the discovery conference to July 11, 2019. Order, dated Jun. 26, 2019, ECF No. 127; Notice of E-Filed Calendar, dated Jun. 26, 2019, ECF No. 128.

         On July 11, 2019, the Court held a telephonic discovery conference with the parties. Minute Entry, dated Jul. 11, 2019, ECF No. 130. The Court reserved its rulings as to the discovery dispute. Id.

         II. STANDARD OF REVIEW

         Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action . . . the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).

         But “district courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases.” Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016). Indeed, “[a] trial court enjoys wide discretion in its handling of pre-trial discovery . . . .” Cruden v. Bank of N.Y., 957 F.2d 961, 972 (2d Cir. 1992); see In Re Agent Orange Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008) (the district court has “wide latitude to determine the scope of discovery.”); Gen. Houses v. Marloch Mfg. Corp., 239 F.2d 510, 514 (2d Cir. 1956) (“The order of examination is at the discretion of the trial judge . . . .”).

         III. ...