35 | March/April 2023 | BAEC Bulletin statute.
loss of sleep. Plaintiffs argued that the alleged conditions were “garden variety” or “quality of life” claims, for which they had disavowed any claim for personal injury damages and explicitly stated they would not offer any medical testimony or records to support. The Court agreed the alleged conditions did not amount to more than allegations of garden variety impacts and, based on the weight of case law within the Circuit, vacated the order compelling the production of medial authorizations. Motion to Seal In Miami Products & Chemical Co. v. Olin Corp. et. al., 19-cv-385-EAW (Dec. 1, 2022), and a series of similar consolidated actions, various parties filed motions to seal documents that previously were designated “Confidential,” “Highly Confidential,” or “Outside Counsel Eyes Only” under a protective order. The Court first noted that there exists a strong presumption of public access to judicial documents, and that a “substantial showing” was required by the Local Rule to restrict access. The Court then observed that it was required to make “specific, on-the-record findings that sealing is necessary to preserve higher values” and that, even then, any sealing order must be narrowly tailored to achieve that aim. Notwithstanding the apparent absence of any opposition, the Court denied the motions, finding that confidentiality agreements alone were not an adequate basis for sealing, and the parties had otherwise uniformly failed to submit the required support necessary to satisfy the applicable standard. Discovery-Related Sanctions In Travco Ins. Co. v. Gree U.S.A., Inc., 22-cv-06157- FPG-MJP (Nov. 15, 2022), plaintiff moved to compel discovery and for sanctions, contending that defendants willfully failed to respond to plaintiff’s document requests, interrogatories and requests for admissions. After recounting defendants’ multiple discovery failures—including that defendants repeatedly missed interrogatory and deposition deadlines—the Court reviewed the relevant rules regarding a party’s discovery obligations and the standard governing a motion for sanctions (i.e. willfulness or bad faith of the noncompliant party; the history, if any, of noncompliance; the effectiveness of lesser sanctions; and whether the noncompliant party had been warned about the “a strong inference that specific false claims were submitted to the government”
Waiver of Attorney-Client Privilege In Lakehal-Ayat v. St. John Fisher College, 18-cv- 06916-CJS-MJR (Dec. 15, 2022)—an action alleging employment discrimination and retaliation—the Magistrate Judge issued a Decision and Order addressing competing requests by the parties for production of documents. Dissatisfied with the decision, plaintiff then filed objections in accordance with Fed. R. Civ. P. 72(a) arguing, among other things, that the written communications he sought between defendants’ counsel and the faculty members who conducted defendants’ internal investigation and hearing were not cloaked with privilege because defendants raised defenses that may involve those communications, thereby placing defendants’ internal investigation “squarely at issue.” In response, defendants maintained that their counsel’s communications are protected by the attorney-client privilege, and that such privilege had not been waived since defendants were not relying on the privileged communications to establish their affirmative defenses. Noting that the “clearly erroneous” standard of review is highly deferential to a Magistrate Judge’s ruling on discovery disputes, the District Judge denied plaintiff’s objections, finding that he failed to meet his “heavy burden” to establish that the Magistrate Judge’s rulings were clearly erroneous or contrary to law. In doing so, the District Judge found that merely pleading affirmative defenses that on their face suggest potential waiver of the privilege does not operate as a waiver of all protected information relevant to the defense unless the party relies, to some extent, on the protected information to advance their defense. The District Judge then held, however, that the question of defendants’ implied waiver of the attorney-client privilege could be revisited if it later becomes apparent, upon further development of the record, that defendants are indeed pursuing defenses that implicate their reliance on particular communications with their counsel. Scope of Discovery In Fresh Air for the Eastside, Inc. et. al. v. Waste Management of New York, L.L.C. et. al., 18 cv 6588- FPG (Nov. 23, 2022), an action alleging various state tort claims and violations of the Clean Air Act and the Resource Conservation and Recovery Act, plaintiffs objected to an order from the Magistrate Judge that, inter alia, compelled them to produce authorizations to obtain medical records reflecting numerous alleged physical complaints such as stress, anxiety, headaches, nausea, coughing, nose and throat irritation, and
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