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Conopco, Inc. v. Wein

June 28, 2007

CONOPCO, INC., PLAINTIFF,
v.
DINA WEIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Theodore H. Katz, United States Magistrate Judge.

MEMORANDUM AND OPINION

Plaintiff Conopco Inc. d/b/a Unilever ("Conopco") filed this action in November 2005, alleging that Defendant Dina Wein, various corporate entities she organized, and employees of those entities, including her counsel, Defendant Avraham Moskowitz ("Moskowitz") (collectively, "Defendants"), perpetrated an extensive fraudulent scheme against Plaintiff and numerous other consumer product companies. Specifically, alleging fraud and federal RICO claims, Plaintiff contends that Defendants, through a variety of misrepresentations and sophisticated ruses, obtained Plaintiff's and other companies' products at substantially discounted prices, purportedly to utilize in promotional and sampling programs intended to expand the companies' markets. Plaintiff alleges that, instead, Defendants diverted the products back into the wholesale market, causing economic harm to Plaintiff and the other victim companies, while unjustly enriching Defendants.

The action was referred to this Court for general pretrial supervision and, accordingly, the Court has addressed numerous discovery disputes among the parties. Presently before the Court are discovery disputes regarding 1) the document production of Gerry Acevedo ("Acevedo"), pursuant to Plaintiff's non-party subpoena, and 2) documents withheld from production by Defendant Moskowitz based on the attorney-client privilege. (See Letter from Rodney A. Brown, Esq. to the Court, dated May 22, 2007 ("Pl. 5/22 Letter"), at 1.) These issues have been the subject of numerous submissions to this Court, and were both argued extensively at an April 18, 2007 hearing ("the April 18 hearing") before this Court.

I. Document Production of Non-Party Acevedo While Conocpo describes Acevedo as the former Chief Financial

Officer of Defendant Wein's companies, and Defendants characterize his role as Defendant Wein's accountant, it is clear that Acevedo was significantly involved in financial matters related to Defendant Wein's businesses, and that he also handled her personal accounting matters. At the April 18 hearing, the Court allowed Defendants - specifically counsel for Defendant Dina Wein - to review Acevedo's documents for privilege and relevance (as to personal matters), and ordered that a rolling production begin within two weeks, to be completed by May 18, 2007, at which time Defendants would also be required to provide a privilege log to Conopco of any documents for which a privilege was asserted. (See Transcript of Hearing, Apr. 18, 2007 ("Hearing Tr."), at 33-34.) Defendants have complied with the Court's instructions, having produced, according to Conopco, nearly 1,300 pages of documents, as well as a privilege log identifying an additional twenty pages.*fn1 Although Conopco does not challenge Defendants' assertion of privilege with regard to the documents identified in the privilege log, Conopco does challenge the size of the total production, as well as the redactions made in a substantial number of the documents produced. (See Pl. 5/22 Letter, at 2-3.) Conopco therefore makes several requests, asking that the Court order Defendants to produce the disk on which the documents were saved, (see id. at 2; Letter from Rodney A. Brown, Esq. to the Court, dated May 29, 2007 ("Pl. 5/29 Letter"), at 2), but primarily seeking to obtain unredacted copies of all of the documents, or, at a minimum, to have the documents submitted to the Court for an in camera review. (See Pl. 5/22 Letter, at 2, 5.)

In support of its request, Conopco cites a series of alleged inadequacies in the production. First, Conopco contends that, based on representations by Acevedo's counsel at the April 18 hearing, that there were thousands of pages of documents to review, the fact that only 1,300 pages of documents have now been produced is suspicious. (See id. at 2.) Conopco then challenges the redactions to documents marked ACV 000078 - ACV 000164 - various pieces of correspondence, all on the letterhead of one of Defendants' corporations, "Look MGT, Inc." - arguing that these documents, which were redacted in their substantial entirety, are not solely related to Defendant Wein's personal matters. (See id. at 2-4.) Conopco also challenges the redactions in the approximately 1,100 pages of timesheets provided as part of the production, arguing 1) that the location of specific redactions in relation to others makes it unlikely that they are actually personal in nature, (see id. at 3), 2) that on some of the timesheets there are unusual gaps between entries, suggesting that whole sections were deleted or "whited out," (see Pl. 5/29 Letter, at 1), and 3) that the printer statements at the bottom of the timesheet printouts show that whole pages of timesheet entries were not produced. (See id. at 2.)

Defendants contend that they have fully complied with the directives issued by the Court at the April 18 hearing. As stated by counsel, "redactions were made only to those documents, or portions thereof, which either: (a) were privileged; or (b) concerned Ms. Wein's personal financial matters." (Letter from Jacqueline I. Meyer, Esq. to the Court, dated May 29, 2007 ("Def. 5/29 Letter"), at 1.)

After considering the parties' correspondence to the Court, including a lengthy back and forth between the parties as to the acceptability of a certain literary reference from Oliver Twist, the phrase from literature most apt with regard to the present dispute is "much ado about nothing." At the April 18 hearing, Acevedo's counsel represented that, based on his preliminary review, there were thousands of pages of documents that required review. Defendants have now produced nearly 1,300 pages of documents. While Conopco views the disparity between the representation that thousands of documents needed to be reviewed, and the subsequent production of only 1,300 documents, as evidence that Defendants have withheld documents, Conopco's surmise provides scant reason to question the bona fides of Defendants' counsel. The Court recognizes Plaintiff's legitimate consternation with the delay in production of the Acevedo documents and the hyperbole with which Dina Wein's and Acevedo's counsel described the task of reviewing the documents. However, this is not a basis to question the substance of the production.

With regard to the substantial redactions to the correspondence written on "Look MGT, Inc." letterhead, Defendants have represented to the Court that "the contents of these letters related to Ms. Wein's personal matters." Although it characterizes Defendants' representation as "highly suspect," (Pl. 5/22 Letter, at 2), Conopco provides no support for this conclusory statement. Likewise, with regard to the selective redactions throughout the timesheets, intended to protect personal information, Conopco finds them "just not credible," (Pl. 5/22 Letter, at 3), but provides little support beyond invective. Having reviewed the timesheets cited by Conopco, and specifically the location of the redactions in relation to the surrounding entries, the Court is hard-pressed to conclude that something foul is afoot.

Similarly, Conopco's dissatisfaction with the fact that the printouts for each week state that the pages provided are, for example, "Page 17 of 26" through "Page 21 of 26," is equally unavailing. While it may seem suspicious on its face, a brief glance at the records themselves shows that the entries for a given week begin on Monday morning, include entries through Friday evening, and conclude with a summation of total hours worked and fees accrued during the week. (See, e.g., Timesheets for Week Ending April 7, 2001, Ex. C to Pl. 5/29 Letter.) Most likely, the printout includes Acevedo's work for all clients in the given week, and the pages produced are only those relating to work completed for Defendants. Indeed, Defendants state that, with the exception of those documents identified as privileged on the privilege log, "none of the timesheets which were produced by Mr. Acevedo were withheld," and "[a]ny discrepancy in the numbering is due only to the formatting of the documents." (Letter from Jacqueline I. Meyer, Esq. to the Court, dated June 26, 2007 ("Def. 6/26 Letter"), at 1-2.) It is clear that timesheets are not missing for entire days, or for entire periods relevant to this litigation.

Defendants have made clear that all redactions were either for privilege or to protect solely personal information. In response to Conopco's concern that transfers of funds between personal and business accounts are not personal in nature, Defendants have further represented that they have made redactions on the timesheet "only as to transfers between accounts that were entirely personal in nature, i.e., from one of Ms. Wein's personal accounts to another such account." (Def. 5/22 Letter, at 2.) Indeed, Conopco's reference, in its May 29 letter to the Court, to a series of timesheet entries showing transfers from Defendant Wein's personal account to various business accounts, confirms the veracity of Defendants' representation.

The one issue raised by Conopco for which the Court found some initial cause for concern relates to the swathes of blank space on some of the timesheets, where redactions are not displayed, while similar gaps or blank spaces do not appear on many of the other timesheets. Unlike other entries that were visibly redacted, upon first glance it is unclear whether there were actual redactions in these spaces. However, Defendants recently submitted a letter to the Court addressing this issue, stating plainly that the gaps are "part of the formatting of the documents," which, "when printed, simply had gaps." (Def. 6/26 Letter, at 1.) Defendants further reiterate that for any document or entry for which it may have been unclear whether a redaction occurred, they inserted the word "Redacted" on the document to alleviate any confusion. (Id.) The Court is satisfied with Defendants' explanation, and no further inquiry with regard to this matter is warranted.

In sum, Conopco has not convinced the Court that any action is necessary with respect to Defendants' production of Acevedo's documents. The Court will not require Defendants to turn over the disk containing the documents to Conopco, or to produce entirely unredacted documents. Moreover, where, as here, the production is voluminous and the evidence of noncompliance scant, the Court will not undertake the burdensome task of conducting an in camera review of the documents. See, e.g., Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 475 (S.D.N.Y. 1993) (indicating that while an in camera review "may be useful if there is a genuine dispute between the parties, [it] is not . . . to be routinely undertaken," especially in cases involving a substantial volume of documents, or as a substitute for a party's submission of an adequate record in support of its claims).

II. Allegedly Privileged Documents of Defendant Moskowitz Conopco disputes the document ...


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