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EIZENSTEIN & CO. INC., Plaintiff, v. GLOBAL TRADING LLC, Benjamin Abraham, Catherine Abraham, Southpark Jewelers, LLC, Ronen Levkovitz, and Kuperman Bros. Diamonds U.S.A., Inc., Defendants.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 120, 121, 122 were read on this motion to COMPEL.
This action involves a dispute over who owns—and who must pay whom for—three diamonds collectively worth tens of thousands of dollars. The various parties to the case tell sharply contrasting stories about the underlying factual circumstances of this dispute; and the parties on the current motion (plaintiff Eizenstein & Co., Inc. and defendant Ronen Levkovitz) have each accused the other of fraud and related wrongdoing.
The ultimate merits of these charges and countercharges are not relevant here. For present purposes, it is sufficient to know that Levkovitz contends that plaintiff's principal, Dan Eizenstein, knowingly misled Levkovitz into ceding custody of the diamonds to a third party (defendant Kuperman Bros. Diamonds U.S.A., Inc.). According to Levkovitz, Eizenstein promised that he would refund $40,000 that Levkovitz had paid for the diamonds if they were turned over to Kuperman—but that Eizenstein then brought this action and obtained a temporary restraining order to force Kuperman to retain custody of the diamonds without Levkovitz having received his money.1
Plaintiff has been represented throughout by Gene Rosen's Law Firm. On the current motion, defendant seeks to compel plaintiff to provide documents indicating (i) when plaintiff (through Eizenstein) first consulted with the Gene Rosen firm (or any other attorney) in connection with this dispute; and (ii) when Eizenstein first received a draft of the complaint, request for a TRO, and other papers filed at the outset of this action. (See NYSCEF No. 120 at 3, 4 [describing defendant's requests for production].) The motion is granted.
Plaintiff objects first to Levkovitz's requests for production as seeking irrelevant materials. This court disagrees. Levkovitz's theory is, in essence, that Eizenstein went into their conversations about how to handle the diamonds and the refund of the $40,000 in bad faith, (assertedly) knowing the whole time that he planned to bring legal action as soon as he had inveigled the diamonds from Levkovitz's hands without paying him; and that this (assertedly) fraudulent conduct injured Levkovitz by depriving him of both the diamonds and his money. On this theory, the timing of when Eizenstein first consulted a lawyer and first saw a draft complaint, and a draft order to show cause with a TRO request, likely would shed significant light on Eizenstein's knowledge and motives in his interactions with Levkovitz.
Plaintiff attacks this theory as mere speculation and belied by the circumstances of the interactions among plaintiff, Levkovitz, Kuperman, and the other defendants. But those arguments are premature here, because they go to whether Levkovitz can ultimately prevail on his defenses against plaintiff's claims and his counterclaim against plaintiff for fraud. The question here is instead whether Levkovitz has demonstrated that the documents he seeks are potentially relevant to his defenses and counterclaim. This court concludes that Levkovitz has made out that showing for purposes of discovery.
The issue whether the documents are privileged is more complicated. As an initial matter, defendant argues that plaintiff has waived any privilege-based objection for lack of objection to a related line of questions at plaintiff's deposition. This court declines to rest its determination on waiver.
As to the documents indicating when Eizenstein first received drafts of the initiating papers in this case, the mere lack of an objection to deposition questions on this topic is insufficient under the standard rules governing depositions to constitute a waiver. With respect to documents indicating when Eizenstein first consulted with counsel, Eizenstein's attorney at his deposition did affirmatively state that he was not objecting to “the question of when you spoke to an attorney with the answer being strictly the date and time.” (NYSCEF No. 106 at Tr. 103.) The attorney's statement points in the direction of finding waiver. On the other hand, after Eizenstein testified that he did not recall when he first spoken to counsel, Levkovitz's attorney called for production of a broader range of documents (with appropriate redactions) that might shed light on the issue. (See id. at Tr. 104.) And it is that broader requested production that is at issue here.
This court need not definitively decide this question, though. Even assuming that no waiver occurred, this court concludes that the information requested by defendant is not privileged. Plaintiff therefore must produce documents reflecting that information (albeit with appropriate redactions).
Defendant argues that the requested materials are straightforwardly unprivileged, because they merely reflect the dates of privileged communications, rather than the communications' substance; and matters such as the dates and means of attorney-client communications are not privileged. Although this court ultimately agrees with defendant, the question is not quite so straightforward.
As plaintiff rightly points out, materials that are not themselves attorney-client communications requesting or providing legal services, such as attorney billing records, may still be shielded by the privilege because their disclosure will provide the requesting party with information tending to reveal the nature or substance of protected communications or legal strategy. (See De La Roche v De La Roche, 209 AD2d 157, 158-159 [1st Dept 1994] [modifying trial court order requiring production of legal bills and remanding for an in camera privilege determination]; Licensing Corp. of Am. v National Hockey League Player's Assn., 153 Misc 2d 126, 128 [Sup Ct, NY County 1992] [denying motion to compel production of legal bills as privileged]; accord Elliott Assocs., L.P. v Republic of Peru, 176 FRD 93, 96-98 [SD NY Oct. 8, 1997] [applying New York law].)
The question, then, is whether knowing merely the dates on which Eizenstein first consulted with an attorney about the subject matter of this action, and on which he first received drafts of the initiating papers in the action, will of itself tend to reveal protected attorney-client information. Plaintiff argues that it will do so because defendant's entire basis for seeking its production is to “determin[e] what was discussed in those communications,” such that “the dates he seeks are inextricably intertwined with the subject matter of the legal advice sought and received.” (NYSCEF No. 121 at ¶ 19.) This court is not persuaded.
In essence, plaintiff's position is that because defendant may draw an inference from when Eizenstein talked to counsel (or received draft litigation materials) to why he did so, that inference intrudes on the privilege. But drawing that inference would not require knowing anything at all about the substance of the communications—merely that they had occurred in the first place. In this way, it is akin to admitting an out-of-court statement on the nonhearsay ground that the statement having been made is itself relevant, whether or not the statement is true. (See DeSario v SL Green Mgmt. LLC, 105 AD3d 421, 422 [1st Dept 2013] [holding that the fact that an out-of-court statement was made is not hearsay].) Put differently, disclosure of the dates in question might shed light on the motives with which Eizenstein (as plaintiff's principal) sought legal counsel (or with which Eizenstein dealt with Levkovitz in the days leading up to the filing of this action); but it would not reveal what Eizenstein said to plaintiff's counsel, or what counsel said to him.
This court concludes, therefore, that plaintiff must produce documents sufficient to identify when (i) plaintiff (through Eizenstein) first consulted with an attorney in connection with the dispute underlying this action; and (ii) when Eizenstein first received a draft of the papers that he ultimately signed and that were filed with this court on March 11, 2018. To the extent that the documents contain other information (beyond the dates, senders, and recipients of the communications) that would tend to reveal protected attorney-client information, plaintiff may redact that information. (See Elliott Assocs., 176 FRD at 98 [permitting questions about the date plaintiff's counsel first had certain conversations with plaintiff, while barring questions on more specific information about the conversations, such as their subject matter].)
Accordingly, for the foregoing reasons, it is hereby
ORDERED that Levkovitz's motion to compel is granted to the extent set forth above; and it is further
ORDERED that plaintiff shall, within 30 days, produce to Levkovitz documents containing the information described above, with redactions as necessary and appropriate.
1. As noted above, plaintiff disputes Levkovitz's account of events in nearly every particular.
Gerald Lebovits, J.
Response sent, thank you
Docket No: 651146/2018
Decided: May 04, 2021
Court: Supreme Court, New York County, New York.
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