Opinion
18-CV-5495 (JFK) (BCM)
12-29-2021
CASSANDRA SHIH, Plaintiff, v. PETAL CARD, INC., f/k/a CREDITBRIDGE, INC., et al., Defendants.
ORDER
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
On November 9, 2021, at the conclusion of a discovery conference, the Court directed the parties to meet and confer regarding certain disputes and - if they were unable to resolve them - to submit each dispute for judicial resolution in a joint letter outlining the parties' respective positions as to that dispute. See Nov. 9, 2021 Tr. (Tr.) (Dkt. No. 243) at 44, 47-48, 61-62; Order dated Nov. 10, 2021 (Dkt. No. 241) ¶ 2.
On November 16, 2021, the parties submitted two joint letters. One of them (the Redaction Joint Letter) (Dkt. No. 246) describes an unresolved dispute concerning redactions, for reasons other than privilege, made by defendant Petal Card, Inc. (Petal) to certain documents it produced in discovery. The second letter (the RFP Joint Letter) (Dkt. No. 248) describes an unresolved dispute concerning defendant Andrew Endicott's refusal to produce documents responsive to plaintiff's Fourth Request for Production of Documents (4th RFPs) (Dkt. No. 248-1).
This Order resolves both disputes.
Redaction Joint Letter
The redaction issue argued on November 9 concerned certain capitalization tables that Petal was obligated to produce in discovery. Petal had produced the documents, but - as discussed in detail during the November 9 conference - it redacted some of them (obscuring information about its investors other than the two individual defendants here) while producing other capitalization tables unredacted. During the conference, the parties disagreed as to whether the redacted versions were the rule or the exception. Tr. at 51-61. Unable to determine which side was correct, the Court directed the parties to meet and confer with respect to "this precise issue," id. at 61, and, "if you can't agree," submit a joint letter explaining, among other things, "whether this is a speck of white in a sea of black or a speck of black in a sea of white." Id.
On November 16, 2021, the parties reported that Petal had agreed to produce all of the capitalization tables without any redactions, but that a new redaction issue had arisen, described by plaintiff as "the non-privileged redaction of virtually all the contents of the transmittal correspondence between Petal on the one hand and its investors and its valuation firm, on the other, that accompanied financial information and documents provided to those third parties by Petal." Redaction Joint Ltr. at 1. A review of the disputed "transmittal correspondence" (consisting of email threads) reveals that Petal produced all of the header information on the emails (names, email addresses, dates, and times) and enough of the content to show who sent which financial documents to whom on what dates, but redacted whatever other content the senders included in their emails. Id. Exs. 2-4. Relying on the well-settled proposition that "[r]edactions are normally impermissible unless based on a legal privilege," Coventry Capital U.S. LLC v. EEA Life Settlements Inc., 2020 U.S. Dist. LEXIS 236645, at *25-26 (S.D.N.Y. Dec. 16, 2020) (collecting cases), and arguing that the email threads could contain "additional information qualifying or supplementing the materials being transmitted," plaintiff asks this Court to order Petal to produce the transmittal correspondence with no redactions (except for privilege). Redaction Joint Ltr. at 2-3.
In response, Petal confirms that it when it produced the email threads on November 5, 2021, it redacted "the content of the communication in the produced threads other than the specific emails identifying and transmitting the provided documents." Redaction Joint Ltr. at 4 (emphasis in the original). However, Petal states, it was never required - either by court order or by agreement - to produce the transmittal correspondence at all. Rather, acting in response to complaints by plaintiff that she "could not tell which documents were sent to investors or valuators," Petal agreed to produce the emails reflecting that information, but never agreed to produce "additional communications" simply because they were included in the same email strings. Id. at 4-5.
The Court will not require Petal to re-produce the transmittal emails in unredacted form. First, plaintiff's complaint is procedurally irregular. The Court directed the parties to submit a joint letter if they could not resolve the issue argued on November 9; that is, the redactions to the capitalization tables. The parties did resolve that issue. This is a new one, involving emails used to transmit a wide variety of financial and business documents (including but not limited to capitalization tables) to Petal's valuators and/or investors. See Redaction Joint Ltr. Exs. 2-4. Second, and more importantly, although plaintiff explains why she believes the redacted portions of the transmittal emails could be relevant to the claims and defenses in this action, she does not identify either the court order that required Petal to produce those emails or the underlying document demand to which they were responsive.
On July 1, 2021, and again on October 6, 2021, the Court ordered defendants to produce all documents provided to Petal's lenders in connection with specified debt financing transactions. (Dkt. No. 160 ¶ 5; Dkt. No. 231 ¶ 3(b).) The transmittal emails now at issue, however, reflect communications with Petal's valuators and investors, not its lenders.
Plaintiff is of course correct that a party generally may not redact (except for privilege) documents that it is otherwise obligated to produce in discovery. See, e.g., Cyris Jewels v. Casner, 2016 WL 2962203, at *4 (E.D.N.Y. May 20, 2016) (party has no "right to redact from admittedly responsive and relevant documents information based on that party's unilateral determinations of relevancy"); Howell v. City of New York, 2007 WL 2815738, at *2 (E.D.N.Y. Sept. 25, 2007) ("It is not the practice of this court to permit parties to selectively excise from otherwise discoverable documents those portions that they deem not to be relevant.") (emphases added). Here, however,
Petal asserts - and plaintiff does not deny - that it was never obligated to produce the transmittal emails. Rather, Petal says, it agreed to produce a "record of the previously produced documents being transmitted from one of the Defendants to one of the investors or valuators," Redaction Joint Ltr. at 4, and satisfied that agreement by producing the transmittal emails in redacted form. Id. "Having received what she bargained for," Petal concludes, plaintiff should not be permitted to move the goal posts and disregard the parties' negotiated compromise. Id.
On the present record, Petal has the better end of the argument. Consequently, construing the Redaction Joint Letter as an application by plaintiff for an order requiring Petal to produce the transmittal emails in unredacted form, the Court DENIES the application.
RFP Joint Letter
During the November 9 conference, the parties reported that they disagreed as to whether Endicott was required to respond to the 4th RFPs. Tr. at 40. Those RFPs, served on October 8, 2021, ask Endicott to produce all documents that he provided to, and all communications that he had with, "any bank or lending institution" in 2015 or 2016 concerning CreditBridge (as Petal was then known), or "any start-up idea concerning credit scores," as well as documents concerning any "partnership or solicitation of partnership concerning CreditBridge or Petal, and - even more broadly - Endicott's "work to 'drive the bank partnership process.'" 4th RFPs ¶¶ 1-3.
According to the RFP Joint Letter, the parties were unable to resolve that issue. Plaintiff argues that the requested documents are relevant to her claims, as they may show the extent to which Endicott's company, in its early stages, "incorporated Plaintiff's ideas, concepts, and work product into its solicitation materials." RFP Joint Ltr. at 2. Endicott does not dispute the relevance proposition, but objects to the 4th RFPs as "untimely, overbroad, and harassing at this late stage of discovery." Id. at 3. He points out that the deadline for substantial completion of party document discovery was August 31, 2021 (see Dkt. No. 165 ¶ 1), and argues that defendants' outreach to potential banking partners was at least generally known to plaintiff from the outset of this litigation, and expressly discussed in numerous documents that defendants produced between January and May 2021 - including multiple versions of an Excel spreadsheet that Endicott used to track his progress with each bank. RFP Joint Ltr. at 3-4 & Ex. 10 (Dkt. No. 248-10). Endicott also complains that the 4th RFPs, even if timely served, would be disproportionate to the needs of this case because they seek such a broad range of communications, exchanged with any and all banks he communicated with, over a multi-year period. RFP Joint Ltr. at 3-4. Endicott offered to search for and produce responsive communications with two banks (to be selected by plaintiff), but plaintiff declined the offer. Id. at 1, 3. Plaintiff, for her part, does not deny that she was generally aware of the bank outreach program prior to the substantial completion deadline, but complains that defendants dragged their feet in producing documents in response to the "Third RFPs to Endicott," served in April 2021. Id. at 1-2. She states that the 4th RFPs were "precipitated" by material produced at the last minute (on August 31, 2021) in response to the Third RFPs, including emails in which Endicott discussed his outreach to certain specific banks. Id. at 1-2 & Exs. 3-7 (Dkt. Nos. 248-7 to 248-7).
I am not persuaded that any of the documents first produced on August 31, 2021 significantly changed the mix of information available to plaintiff so as to justify what would be in effect a reopening of party document discovery months after it should have been completed. Although those documents contained additional detail about some of the banks that Endicott communicated with, the spreadsheets that plaintiff received months earlier listed each potential bank partner by name (including those mentioned in the later-produced emails) and, as to each bank, included its "key contact," an email address (and in some cases a phone number) for the contact, and Endicott's "tracking comments," summarizing the progress of his outreach efforts to date. RFP Joint Ltr. Ex. 10. I therefore conclude that plaintiff could have timely requested bank- related communications from defendants - or from the banks themselves, by subpoena, if necessary - well in advance of August 31, 2021. Consequently, construing the RFP Joint Letter as an application by plaintiff for an order requiring Endicott to produce the documents sought in the 4th RFPs, the Court DENIES that application as well.
SO ORDERED.