Opinion
03 Civ. 3002 (PKL) (JCF).
March 16, 2006
MEMORANDUM AND ORDER
As discussed in several prior decisions, this case concerns a vendetta between Jerry I. Treppel, a securities analyst who claims that his career was destroyed by a smear campaign engineered by the defendants, and Eugene N. Melnyk, the Chairman and Chief Executive Officer of Biovail Corporation ("Biovail"), who contends that Mr. Treppel published false information that defamed him and caused the stock of Biovail to plunge. Mr. Treppel now moves to compel compliance with document and deposition subpoenas served on non-parties Michael Specht and Edward Wong, private investigators hired by Mr. Melnyk. The motion is granted. Background
Additional factual detail can be found in Treppel v. Biovail Corp., ___ F.R.D. ___, No. 03 Civ. 3002, 2006 WL 278170 (S.D.N.Y. Feb. 6, 2006) ("Treppel IV"); Treppel v. Biovail Corp., No. 03 Civ. 3002, 2005 WL 2086339 (S.D.N.Y. Aug. 30, 2005) ("Treppel III"); Treppel v. Biovail Corp., No. 03 Civ. 3002, 2005 U.S. Dist. LEXIS 2737 (S.D.N.Y. Feb. 22, 2005) ("Treppel II"); and Treppel v. Biovail Corp., No. 03 Civ. 3002, 2004 WL 2339759 (S.D.N.Y. Oct. 15, 2004) ("Treppel I").
According to the plaintiff, in an "attempt to fish for facts to backfill his counterclaims," Mr. Melnyk hired Mr. Specht and Mr. Wong "to conduct surveillance of Treppel's residence and abscond with his trash left at curbside." (Plaintiff's Memorandum of Law in Support of His Motion to Compel Compliance with Subpoenas ("Pl. Memo.") at 2). Mr. Treppel therefore seeks to depose the investigators concerning "the nature of, and reasons for, their engagement, the timing of their retention, the specifics of their activities, and the results of their investigation." (Pl. Memo. at 3). Further, he seeks to discover whether the investigators were properly licensed, whether they conducted their surveillance in a legal manner, and whether they were engaged to elicit information to buttress counterclaims that had initially been filed without an adequate factual foundation. (Pl. Memo. at 4).
Although the investigators deny sorting through Mr. Treppel's trash, they acknowledge that they performed services on behalf of Mr. Melnyk. (Affidavit of David M. Monachino dated Feb. 27, 2006 ("Monachino Aff."), ¶ 5). Both they and Mr. Melnyk argue, however, that any information they possess would not be relevant and would be immune from discovery as attorney work product. (Monachino Aff., ¶¶ 6, 10; Defendant Eugene N. Melnyk's Memorandum of Law in Opposition to Plaintiff's Motion to Compel Compliance with Subpoenas at 3-7). Discussion
The results of surveillance generally come within the broad scope of information that is relevant for purposes of discovery.See, e.g., Marchello v. Chase Manhattan Auto Finance Corp., 219 F.R.D. 217, 219 (D. Conn. 2004); Gutshall v. New Prime, Inc., 196 F.R.D. 43, 45 (W.D. Va. 2000) (collecting cases). Some courts, however, have found such information to be protected from discovery as work product. See Marchello, 219 F.R.D. at 219. Others have determined that while a written investigative report may be immune from disclosure, the observations of the investigators are not. See Papadakis v. CSX Transportation, Inc., ___ F.R.D. ___, No. Civ.A.04-30189, 2006 WL 75313, at *1-2 (D. Mass. Jan. 10, 2006) (denying production of report but requiring production of surveillance tapes and deposition of investigators). And, even when the result of surveillance is work product, it may be subject to disclosure when the requesting party can demonstrate substantial need and an inability to obtain substantially equivalent information without undue hardship.See Gutshall, 196 F.R.D. at 46; Bachir v. Transoceanic Cable Ship Co., No. 98 Civ. 4625, 1998 WL 901735, at *1 (S.D.N.Y. Dec. 28, 1998).
The burden of demonstrating the applicability of the work product doctrine falls on the party seeking its protection. See Securities and Exchange Commission v. Beacon Hill Asset Management LLC, 231 F.R.D. 134, 139 (S.D.N.Y. 2004); In re Initial Public Offering Securities Litigation, 220 F.R.D. 30, 34 (S.D.N.Y. 2003). Here Mr. Melnyk — the party with standing to assert privilege — has not satisfied that burden. He has submitted no privilege log identifying specific documents as to which he asserts work product immunity. Nor has he articulated how all information possessed by Mr. Specht and Mr. Wong would be immune from disclosure such that they should be excused altogether from appearing for deposition. Accordingly, in order to flesh out any potentially legitimate claims of work product, Mr. Melnyk shall submit a privilege log within two weeks of the date of this order, and Mr. Specht and Mr. Wong shall produce any documents responsive to the subpoena that are not identified in the log. The documents listed in the log shall be identified with the specificity required by local civil rule 26.2(a) (2). Further, Mr. Specht and Mr. Wong shall appear for deposition, and to the extent that Mr. Melnyk wishes to assert any privilege or discovery immunity, the basis for such an assertion shall be developed on the record.
Conclusion
For the reasons discussed, the plaintiff's motion to compel compliance with subpoenas served on Michael Specht and Edward Wong is granted to the extent set forth above.
SO ORDERED.