United States District Court, S.D. New York
OPINION AND ORDER
HENRY PITMAN, Magistrate Judge.
Plaintiff Nimkoff Rosenfeld & Schechter LLP and counterclaim-defendant Ronald A. Nimkoff (collectively, the "Nimkoff Firm"), move for an Order (1) holding Ira D. Tokayer, Esq. in contempt for failing to produce a document in response to a subpoena and compelling Tokayer to produce that document (Notice of Motion, dated March 1, 2013 ("Contempt Motion") (Docket Item 206)), and (2) disqualifying Tokayer as counsel for defendant/counterclaim-plaintiff RKO Properties, Ltd. ("RKO"), on the basis of the advocate-witness rule or a conflict of interest (Notice of Motion, dated March 1, 2013 ("Disqualification Motion") (Docket Item 212)).
For the reasons set forth below, the Contempt Motion is denied, except that Tokayer is ordered to submit an affidavit supporting the representations made in opposition to the Contempt Motion, and the Disqualification Motion is denied without prejudice.
The facts giving rise to this action are set forth in Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd., No. 07 Civ. 7983 (DAB)(HBP), 2013 WL 664711 (S.D.N.Y. Feb. 25, 2013) (Pitman, M.J.) and 2011 WL 8955840 (S.D.N.Y. Apr. 7, 2011) (Pitman, M.J.), familiarity with which is assumed. The facts relevant to the disposition of the present motions are set forth below.
A. Escrow Letter
On July 12, 2012, the Nimkoff Firm served Tokayer with two subpoenas, which directed him to (1) appear for a deposition and (2) produce documents related to, among other things, the underlying Boymelgreen action (Subpoenas, dated July 12, 2012, annexed as Exhibit C to the Declaration of Daniel G. Ecker, Esq., dated March 1, 2013 ("Ecker Decl.") (Docket Item 207)). Tokayer objected to the subpoena, and I held a discovery conference on October 12, 2012 to discuss these objections and other issues. I granted RKO's application for a protective order precluding Tokayer's deposition through December 31, 2012, with-out prejudice to a renewed application by the Nimkoff Firm to depose Tokayer after discovery from other potential sources had been exhausted (Order, dated October 12, 2012 (Docket Item 142), ¶ 12). With respect to the subpoena for documents, I ordered that Tokayer produce the requested documents, other than those withheld on the ground of privilege, no later than October 26, 2012 (Order, dated October 12, 2012 (Docket Item 142), ¶ 13).
Pursuant to my October 12 Order, Tokayer provided the Nimkoff Firm with responses and objections, along with a schedule of privileged documents, on October 25, 2012 (Ira Tokayer's Response and Objections to Plaintiff's Subpoena to Produce Documents, dated October 25, 2012, annexed as Exhibit F to Ecker Decl.). The Nimkoff Firm complained that Tokayer's responses were incomplete. As a result, I held another discovery conference with the parties on November 29, 2012. During that conference, Tokayer's counsel repeatedly denied that Tokayer had improperly withheld documents in response to the subpoena:
[T]here appears to be on the part of the plaintiff a feeling that not [sic] complete production has been made.
And I have made representations to them, to [plaintiff's counsel] personally, by voicemail, that we produced Mr. Tokayer's entire Boymelgreen file,  with the exception of certain logged documents....
So I have nothing more to say to [plaintiff's counsel] about production except that we've produced everything with the exception of the privilege log. * * *
[My] position is that Mr. Tokayer and I have produced everything in his file on the Boymelgreen matter that could conceivably bear on this case.
(Tr. of Discovery Conference, held on November 29, 2012, at 23, 24, annexed as Exhibit J to Ecker Decl.). Subsequently, on March 8, 2013, I ordered Tokayer to produce certain additional documents that he had previously withheld as privileged (Order, dated March 8, 2013 (Docket Item 163), annexed as Exhibit A to the Declaration of Mark K. Anesh ("Anesh Decl.") (Docket Item 222)).
In the Contempt Motion, the Nimkoff Firm argues that Tokayer should be held in contempt and sanctioned for failing to provide a document in response to the subpoena, pursuant to Fed.R.Civ.P. 45(e). Specifically, the Nimkoff Firm alleges that Tokayer has intentionally withheld the production of a letter that Nimkoff sent to Tokayer on July 16, 2007. The letter states:
As you had requested, I have enclosed: (1) Stipulation and Notice of Cancellation of Notice of Pendency; (2) Stipulation Discounting Action with Prejudice; (3) My Affirmation dated July 16, 2007; (4) My letter of instructions to Ian Ceresney dated July 16, 2007; and (5) My letter to Robert Herskowitz dated July 16, 2007.
These documents are delivered to you to be held in escrow and not delivered to anyone to maintain (including Robert Herskowitz) unless and until all five documents have been fully executed and fully executed originals of all five documents have been sent back to me.
(Letter from Nimkoff to Tokayer, dated July 16, 2007 (the "Escrow Letter"), annexed as Exhibit D to the Affidavit of Ronald A. Nimkoff in Support for Contempt and Sanctions Against Ira D. Tokayer, Esq., dated March 1, 2013 ("Nimkoff Aff.") (Docket Item 208)). Nimkoff has a copy of the letter in issue (Nimkoff Aff., Ex. D). He seeks Tokayer's copy to prove Tokayer's receipt of the letter.
In support of its theory that Tokayer's conduct is contumacious, the Nimkoff Firm relies on several facts. First, the Nimkoff Firm argues that the Escrow Letter refutes RKO's defense in this action, thus, motivating Tokayer to withhold its production (Memorandum of Law in Support of Motion for Contempt and Sanctions, dated March 1, 2013 ("Pl.'s Contempt Mem."), at 1 (Docket Item 209)). Second, the Nimkoff Firm asserts that a member of its firm personally hand-delivered the Escrow Letter, along with the attachments, to Tokayer's office (Tr. of Discovery Conference, dated April 8, 2013, at 13, annexed as Exhibit C to Reply Declaration of Daniel G. Ecker in Further Support of Motion for Contempt and Sanctions Against Ira D. Tokayer, Esq., dated May 10, 2013 ("Reply Ecker Decl.") (Docket Item 210)). Third, Tokayer purportedly produced the documents that were enclosed with the Escrow Letter (Reply Memorandum of Law in Further Support of Motion for Contempt and Sanctions, dated May 10, 2013 ("Contempt Reply"), at 6 (Docket Item 211)). Fourth, when Tokayer inspected files at the Nimkoff Firm's premise, Tokayer examined but did not request a duplicate of the Nimkoff Firm's copy of the Escrow Letter (Contempt Reply at 6). Fifth, during the deposition of RKO's president, Robert Herskowitz, Herskowitz was unable to recall how he had obtained one of the attachments enclosed with the Escrow Letter (Pl.'s Contempt Mem. at 10). Finally, the Nimkoff Firm draws a negative inference from Tokayer's failure to provide an affidavit in support of his opposition to the Contempt Motion (Contempt Reply at 7).
In opposition, Tokayer argues that the Contempt motion is baseless because "[Tokayer] is not in possession, nor does he recall ever being in possession, of the purported" Escrow Letter (Memorandum of Law Submitted on Behalf of Non-Party Ira D. Tokayer, Esq. in Opposition to Plaintiff/Counterclaim-Defendants' Motion for Contempt and Sanctions, dated April 19, 2013 ("Contempt Opp'n"), at 4 (Docket Item 223)).
>B. Tokayer as Advocate-Witness
The Nimkoff Firm has sought the ...