BAEC Bulletin - May/June 2023

BAEC Bulletin | May/June 2023 | 41

Discovery Stays In Tripathy v. Schneider et. al., 21-cv-6392-FPG (March 7, 2023), defendants requested that discovery be stayed pending a decision in their motion for summary judgment. Citing the three factor test for establishing good cause under Rule 26(c), the Court declined to hold discovery in abeyance. Whether there is good cause to stay discovery pending a dispositive motion, a court considers the strength of the dispositive motion, the breadth of the discovery sought, and the prejudice a stay would have on the non-moving party. Here, the Court concluded that the strength of the grounds proffered by defendant in support of the motion weighed in favor of a stay. The breadth of the discovery sought to be stayed, however, was relatively narrow in part because the parties had nearly completed discovery. In addition, a stay would further delay the litigation if the summary judgment motion were denied, to the prejudice of plaintiff. The Court thus concluded the second and third factors together outweighed the first factor and weighed against a stay and, accordingly, the Court denied the request.

burden of proving the subpoenas would result in an undue burden. The Court also denied the request for a protective order for two reasons. First, the non-party witnesses did not submit the certification required by Rule 26(c)(1) that they had conferred in good faith with defendants in an effort to resolve the discovery dispute. In addition, the factors that weighed against a finding of undue burden also weighed against a finding of good cause that the order was needed to protect the non-party witnesses from annoyance, embarrassment, oppression, or undue burden or expense. Without an undue burden or good cause, the motion to quash or for a protective order was denied. Discovery Dispute Concerning Interrogatories In Liberty Mutual Ins. Co. v. Guereschi, 17-cv-01152- WKS (Feb. 28, 2023), plaintiff sought damages against a former employee for alleged breaches of non-solicitation and confidentiality agreements. In discovery, plaintiff served interrogatories asking defendant to disclose the identities of plaintiff’s customers that he solicited following the termination of his employment with plaintiff. In his responses, defendant contended that some of those customers were cultivated as a result of his “independent efforts,” and not as a result of his prior relationship with plaintiff. Based on this “independent efforts” defense, plaintiff served six additional interrogatories, each of which referenced an attached list of 459 people, and asked defendant to describe his supposed pre-existing relationships with those customers, as well as the details of his “independent efforts.” Defendant objected to the additional set of interrogatories on the grounds that they exceeded the number allowed under the Federal Rules of Civil Procedure, and because they were unreasonable and unduly burdensome. Defendant then moved for a protective order, and plaintiff cross-moved to compel. In deciding the motions, the Court found that plaintiff had only served a total of 24 interrogatories, which is below the limit of 25 set by Fed. R. Civ. P 33(a)(1), and rejected defendant’s argument that the most recent set of interrogatories “functionally comprise hundreds of separate interrogatories,” holding that a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication. Thus, while “the response may be voluminous and time- consuming,” the requests did not constitute hundreds of individual interrogatories, and did not run afoul of the numeric limit set in Rule 33. As a result, defendant was ordered to provide responses.


Since 2001, I have been honored to have been chosen to serve as a mediator or neutral arbitrator in over 3,000 claims which were pending in our court system. The vast majority of the non-binding mediations were successfully resolved. In addition to having over 30 years of experience in the litigation and trial of personal injury claims, I have lectured on behalf of the Bar Association of Erie County’s Erie Institute of Law and have given in-house presentations on

the topic of ADR. I am a past President of the Western New York Trial Lawyers Association, and a charter member of the NYSBA’s Dispute Resolution Section. I am also a Certified Federal Court Mediator. My fees are extremely reasonable, certainly a more cost effective alternative than a trial. I will be as flexible as possible in terms of scheduling and location, resulting in a quicker and more convenient resolution of your claim. MICHAEL MENARD 69 Delaware Ave., Suite 705, Buffalo, NY 14202 (716) 842-6700 | FAX: (716) 842-6707

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