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Debra Geller and Gregg Geller v. North Shore Long Island Jewish Health System and Anthony Difilippi

November 9, 2011

DEBRA GELLER AND GREGG GELLER, PLAINTIFF(S),
v.
NORTH SHORE LONG ISLAND JEWISH HEALTH SYSTEM AND ANTHONY DIFILIPPI, DEFENDANT(S).



The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiffs' motion to compel the production of certain documents pertaining to an internal investigation conducted by defendants and the depositions of two witnesses, as well as a request for an extension of discovery. Defendants oppose plaintiffs' motion to compel on the grounds of privilege and the request to extend discovery on the basis of unreasonable delay. For the following reasons, plaintiffs' motion is denied in its entirety.

FACTS

Plaintiffs, Debra Geller and her husband, Gregg Geller, commenced this action on January 14, 2010, pursuant to Title VII, 42 U.S.C. § 2000e et seq., and the New York Human Rights Law, N.Y. Executive Law § 296 et seq., as well as New York common law. Plaintiffs allege that Debra Geller was sexually harassed and retaliated against by defendants, North Shore Long Island Jewish Health System ("LIJ") and her supervisor, Anthony DiFilippi ("DiFilippi"), during the course of her employment with LIJ. (Am. Compl. ¶¶ 1-3, 7, 17-28.) Plaintiff Gregg Geller asserts a loss of consortium claim. (Am. Compl. ¶ 4, 30.)

Specifically, plaintiffs allege that, beginning in late 2005, Debra Geller was subjected to a severe and pervasive hostile work environment by DiFilippi, which resulted in her filing a complaint against DiFilippi on July 10, 2009 with LIJ's Human Resources Department. (Am. Compl. ¶¶ 17, 19.) On July 28, 2009, Debra Geller met with LIJ's Corporate Compliance Officer, Kim Greene ("Greene"), to discuss her complaint against DiFilippi. (Am. Compl. ¶ 23.) Greene thereafter conducted an internal investigation regarding Debra Geller's complaint against DiFilippi, which plaintiffs allege was inadequate. (Am. Compl. ¶ 25.)

The parties appeared before the undersigned for an initial scheduling conference on May 18, 2010, at which time a discovery schedule was adopted, which included a discovery deadline of November 30, 2010. By Order dated October 22, 2010, the discovery deadline was extended to March 30, 2011 and the parties were advised that this was the final "good cause" extension. (Order of Boyle, J. dated Oct. 22, 2010.) By letter dated March 11, 2011, plaintiffs advised the Court of an ongoing discovery dispute and requested a conference call with the Court to resolve the issue. (Letter from Serrins, A. to Boyle, J. dated Mar. 11, 2011.) Specifically, plaintiffs sought to compel the production of certain documents relating to the internal investigation conducted by Greene in response to Debra Geller's complaint against DiFilippi, as well as Greene's deposition. (Id.) Defendants refused to produce the documents on the grounds of privilege and, in a responsive letter, dated March 14, 2011, advised the Court that plaintiffs had refused to return certain privileged documents that had been inadvertently produced by defendants. (Letter from D'Angelo, E. to Boyle, J. dated Mar. 14, 2011.) Thereafter, on March 25, 2011, five days prior to the close of discovery, plaintiffs requested an additional discovery extension as a result of the ongoing discovery dispute. (Letter from Serrins, A. to Boyle, J. dated Mar. 25, 2010.)

The Court held a conference to address the issues raised by plaintiffs on April 8, 2011. At that conference, the Court denied plaintiffs' motion to compel the production of Greene's investigatory documents that defendants had withheld as privileged. The Court further denied plaintiffs' request to extend discovery.

Plaintiffs thereafter appealed the undersigned's ruling to the district judge assigned to this action, Judge Spatt. By Memorandum of Decision and Order dated June 18, 2011, Judge Spatt denied plaintiffs' objections without prejudice to renew and returned the action to the undersigned, requesting that the undersigned issue a further order addressing the basis for the denial of plaintiffs' motions. (Mem. Of Decision and Order, Spatt, J., dated June 18, 2011 at 2.) The Court issued an Order on July 7, 2011 stating that it would consider plaintiffs' motions de novo because, unfortunately, there is no record of the proceedings that took place on April 8, 2011 and the parties are unable to agree as to what occurred during that conference. (Order of Boyle J., dated July 7, 2011.)

Plaintiffs thereafter filed the within motion, which again requests the production of Greene's investigatory documents that defendants have withheld as privileged, as well as an order compelling the depositions of Greene and Mark Gloade, an LIJ human resources employee who is believed to have been the individual responsible for terminating DiFilippi, as well as an extension of discovery. Defendants oppose plaintiffs' motion on the basis of privilege and unreasonable delay.

DISCUSSION

I. Plaintiffs' Motion to Compel Discovery

Pursuant to Federal Rule of Civil Procedure 26(b)(1), discovery may be had of any matter, not privileged, that is relevant to the claim or defense of any party. See Fed. R. Civ. P. 26(b)(1). There is no dispute that the information requested by plaintiffs relating to the internal investigation conducted by Greene is relevant to plaintiffs' claims in this action. In fact, defendants have already produced the investigative documents created by Greene prior to its retention of counsel. Rather, the crux of the parties' dispute is whether that portion of the investigation conducted after counsel was retained is protected by the attorney-client and/or work product privileges.

By letter dated August 18, 2009, plaintiffs' attorney, Alan Serrins, advised the President and Chief Executive Officer of LIJ, Michael Dowling, of plaintiff Debra Geller's allegations of sexual harassment by defendant DiFilippi and threatened litigation unless LIJ chose to settle the matter within five days of receipt of the letter. (Klein Decl., Ex. B.) On August 19, 2009, as a result of plaintiffs' attorney's letter, defendants retained as counsel Epstein Becker & Green, P.C. (Klein Decl. ¶ 2.) By letter dated August 24, 2009, defendants' counsel informed plaintiffs' counsel of their retention and directed that any further communications be directed to counsel. (Klein Decl., Ex. R.) Accordingly, beginning on August 19, 2009, the internal investigation commenced by Greene in July 2009 was supervised by defense counsel. (Klein Decl. ¶ 2.)

Plaintiffs argue that because Greene conducted the internal investigation in her capacity as Corporate Compliance Officer and not as an attorney, the documents she created during the course of the investigation are not privileged. However, "[f]actual investigations conducted by an agent of the attorney, such as 'gathering statements from employees, clearly fall within the attorney-client rubric.'" Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 71 (S.D.N.Y. 2010) (quotation omitted). "Thus, courts have frequently extended the attorney-client privilege to communications made to investigators who have provided necessary assistance to attorneys," as Greene did here. Id. (collecting cases). "As one commentator has noted, were an attorney required to exclude investigators from the circle of confidentiality in order to maintain the ...


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