Opinion
Index No. 159985/2019
05-27-2022
Dorothy GIORDANO, Plaintiff, v. Patrick DUFFY, Endeavor Life Sciences, LLC, Jill Spielberg, and the Law Firm of Harold, Salant, Strassfield & Spielberg, Defendants.
Lucas and Cavalier, LLC, Philadelphia, PA (Sean L. Phelan of counsel), for plaintiff. Herrick, Feinstein LLP, New York, NY (William R. Fried and Jina Moon of counsel), for defendants Patrick Duffy and Endeavor Life Sciences, LLC.
Lucas and Cavalier, LLC, Philadelphia, PA (Sean L. Phelan of counsel), for plaintiff.
Phelan has since withdrawn his appearance in this action; Giordano is now represented by other counsel. (See NYSCEF Nos. 174, 175.)
Herrick, Feinstein LLP, New York, NY (William R. Fried and Jina Moon of counsel), for defendants Patrick Duffy and Endeavor Life Sciences, LLC.
Gerald Lebovits, J.
This motion concerns the latest of a series of discovery disputes in this action, which arises from a series of loans (totaling $1.4 million) from nonparty Wynn Housel to defendant Patrick Duffy. Plaintiff, Dorothy Giordano, contends that the $1.4 million in loaned funds was marital property, not Housel's sole property, and is seeking to recover that money.
This court previously concluded that Giordano's claims as against all defendants are premature given a pending matrimonial action between Giordano and Housel that might resolve the status of the $1.4 million. The court therefore granted separate motions to stay discovery pending the resolution of the matrimonial action that were brought by (i) defendants Duffy and Endeavor Life Sciences, LLC, and (ii) defendants Jill Spielberg and her law firm. These discovery stays do not, however, include a supplemental discovery response that this court had previously ordered Duffy to make to Giordano. (See NYSCEF No. 149 at 1 [scope of discovery stay]; NYSCEF No. 122 [discovery order].)
(See NYSCEF No. 123 [order memorializing decision delivered on the record staying discovery as against defendants Jill Spielberg and the law firm of Harold, Salant, Strassfield & Spielberg]; NYSCEF No. 129 [transcript of oral argument and that decision on the record memorialized in NYSCEF No. 123]; NYSCEF No. 149 [decision and order staying discovery as against Duffy and Endeavor].)
Duffy served that supplemental response as required by this court's discovery order. (See NYSCEF No. 167 [cover email].) Giordano believes the supplemental response to be still insufficient. She now moves under CPLR 3124 and 3126 for a range of relief, including (i) compelling further supplementation of a number of the responses; (ii) striking Duffy and Endeavor's answer; and (iii) awarding her obtain monetary sanctions of $2,500.
In opposing this motion, Duffy and Endeavor point out that Giordano herself failed to file a supplemental response required by the underlying discovery order. And they suggest that Giordano should be sanctioned for bringing what they contend to be a frivolous motion.
Giordano's request to compel further supplementation is granted in part and denied in part, as set forth item-by-item below. Giordano must further supplement her own discovery response as previously ordered by this court. Giordano's request for discovery sanctions (monetary and otherwise) is denied. Duffy and Endeavor's informal request for sanctions under 22 NYCRR 130-1.1 is denied.
Giordano's Document Requests of Duffy .
Nos. 1(c), 1(e), 3, 4, 11, 12, 15, 24: Duffy's supplemental responses to these requests comply with the prior discovery order. Duffy need not further supplement his responses.
No. 21: Duffy must further supplement his response to clarify which documents produced correspond to which interrogatory responses.
No. 27: Duffy's supplemental response to this request complies with the prior discovery order. Duffy need not further supplement his response.
Giordano's objection to Duffy's supplemental response suggests that she feels that Duffy should be required to produce documents that would more logically be found in Endeavor's possession, rather than Duffy's. (See NYSCEF No. 143 at 5.) But this court's prior discovery order noted that Giordano's objections to Duffy's initial document production—which were addressed and resolved in that order—applied only to Duffy's responses, not Endeavor's. (See NYSCEF No. 122 at 2.) The order therefore provided that "[s]hould plaintiff also have objections to particular responses made by Endeavor, plaintiff's counsel shall identify to Endeavor's counsel and to the court which responses or objections he believes to be deficient and why." (Id. ) Giordano's counsel did not do so before Duffy served his supplemental responses.
Supplemental Request No. 3: Duffy's supplemental response omitted the information he was directed to produce by this court's prior discovery order—namely the holders of shares or other equity interests in Endeavor and their respective ownership shares. (See id. ) Duffy has contended, both in the supplemental response and his opposition to the current motion, that this information is not relevant here and also sensitive and confidential. (See NYSCEF No. 161 at 18; NYSCEF No. 164 at 32 [affirmation of counsel].) And he informally requested, in those filings, that this court reconsider its order to produce that information. (See id. )
Duffy's informal requests for reconsideration are not a proper vehicle for seeking reargument of this court's discovery order. (Cf. NYSCEF No. 137 at 2 [order denying Giordano's letter request for reargument of this court's discovery-stay ruling].) And this court is skeptical, given that Giordano has claimed that the allegedly misappropriated funds were funneled to Endeavor, that the information sought in this request is irrelevant, as Duffy suggests.
That said, court recognizes the weight of the confidentiality interests that Duffy asserts—particularly given the contentious nature of the underlying dispute and the repeated clashes between the parties over discovery in this action. Duffy must provide a further supplemental response that includes the documents and information that this court's prior order directed him to produce, but only on several confidentiality-related conditions: (i) Neither Giordano nor any agent working on her behalf (including counsel) may disclose those documents or information to anyone other than Giordano, her counsel, or the court; (ii) neither Giordano nor any agent (including counsel) may use the information for any purpose beyond litigating this action (Index No. 159985/2019); and (iii) neither Giordano nor agent of hers other than counsel may contact any of the named entities or individuals directly, and Giordano's counsel may not contact any of the named individuals or entities directly if he knows or has reason to believe that they are themselves represented by counsel.
Giordano's Interrogatories to Duffy:
Nos. 3, 5, 7, 12, 38, 42, 48, 59: Duffy's supplemental responses to these interrogatories comply with the prior discovery order. Duffy need not further supplement his responses.
No. 6A: Duffy must further supplement his response to clarify whether he has since learned of any other assets being shared marital property besides the Tribeca condo and the promissory notes; and, if so, which assets he learned to be shared property and when he learned that.
No. 41: Duffy must further supplement his response to clarify whether he has an ownership interest in any companies, corporations, subsidiaries or business endeavors of Endeavor besides Everence; and, if so, what interest he holds.
No. 46: Duffy must further supplement his response to clarify whether he is stating (i) that neither Housel nor Spielberg provided any funding to Endeavor at any point; or (ii) only that neither Housel nor Spielberg provided any funding to Endeavor after the initiation of the marital action.
No. 58: Duffy must further supplement his response to to indicate what information he would need (but does not have) in order to be able to track where the $1.4 million at issue in this action currently is.
Duffy/Endeavor's Document Requests to Giordano
No. 12: Giordano must further supplement her discovery response to provide (to the extent available) documents and communications concerning (i) the potential investment opportunity with Palantir Technologies, and (ii) her intent to further explore business opportunities in the health and wellness industry in the New York City area, as directed in this court's prior discovery order. (See NYSCEF No. 122 at 5.)
Accordingly, it is hereby
ORDERED that the branch of Giordano's motion seeking under CPLR 3124 to compel Duffy to further supplement his discovery responses is granted in part and denied in part as set forth above, and Duffy must serve the further supplemental discovery responses within 45 days of service of a copy of this order with notice of its entry; and it is further
ORDERED that Giordano and her agents (including counsel) must observe the confidentiality-related requirements set forth above with respect to Supplemental Document Request No. 3; and it is further
ORDERED that Giordano must comply with this court's prior discovery order and serve a supplemental document response, as directed above, within 45 days of service of notice of entry; and it is further
ORDERED that the branch of Giordano's motion seeking discovery sanctions under CPLR 3126 is denied; and it is further
ORDERED that Duffy/Endeavor's informal request for sanctions under 22 NYCRR 130-1.1 is denied; and it is further
ORDERED that Giordano serve a copy of this order with notice of its entry on all parties.