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McNamee v. Clemens

United States District Court, E.D. New York

April 2, 2014

BRIAN G. McNAMEE, Plaintiff,

EMERY CELLI BRINCKERHOFF & ABADY LLP, Richard D. Emery, Earl Ward, Debra L. Greenberger, New York, NY, Attorneys for Plaintiff.

RUSTY HARDIN & ASSOCIATES, LLP, Rusty Hardin, Joe Roden, Jeremy T. Monthy, Houston, Texas, Attorneys for Defendant.


STERLING JOHNSON, Jr., District Judge.

Pursuant to Federal Rule of Civil Procedure 72(a) ("Rule 72(a)"), Defendant Roger Clemens ("Defendant" or "Clemens") moves to modify or set aside two orders issued by United States Magistrate Judge Cheryl L. Pollak ("Judge Pollak" or the "Magistrate"). The orders in question are a September 18, 2013 order relating to Plaintiff Brian McNamee's ("McNamee" or "Plaintiff") Motion to Compel, (the "September 18 Order") and a January 30, 2014 order relating to Defendant's Motion for Reconsideration (the "January 30 Order") (collectively, the "Discovery Orders"). The September 18 Order granted in part and denied in part McNamee's Motion to Compel. The January 30 Order denied Clemens's Motion for Reconsideration of the September 18 Order.

The Court has reviewed the Discovery Orders as well as the parties' submissions and finds that: (1) Defendant's Rule 72(a) Motion is untimely, and (2) the Discovery Orders are neither clearly erroneous nor contrary to law. For the following reasons, Defendant's Motion is DENIED.


Although familiarity with the facts and circumstances underlying Judge Pollak's Discovery Orders is assumed, a brief description of the case is in order. Defendant Clemens is a former Major League Baseball player. Plaintiff McNamee worked as a personal trainer for Clemens. On December 13, 2007, former United States Senator George Mitchell released the "Mitchell Report, " which included statements made by McNamee that he had injected Clemens with performance enhancing drugs. It is Clemens's statements denying McNamee's allegations of steroid use and his accusation that McNamee is lying that form the basis of McNamee's defamation suit.

Thereafter, litigation commenced. On November 6, 2012, McNamee requested that Clemens produce communications with Clemens's sports agent Randal Hendricks ("Hendricks") ("Document Request 55"). McNamee also sought production of all communications with Clemens's public relations strategist Joe Householder ("Householder"), as well as Householder's firm, Public Strategies, Inc. ("Document Request 57"). On January 31, 2013, Clemens objected to the requests, claiming that the documents were privileged. In a July 9, 2013 letter from McNamee to Judge Pollak, McNamee notified Judge Pollak that Clemens had failed to produce a log of all documents withheld pursuant to a claim of privilege, as required by Local Civil Rule 26.2. (Pl's Letter dated July 9, 2013 (Dkt. No. 79) at 1.) On August 2, 2013, McNamee filed a Motion to Compel Clemens to produce documents responsive to Document Request 55 and Document Request 57. On August 13, 2013, Judge Pollak issued an order requiring Clemens to produce the contested documents for in camera review. On August 18, 2013, Clemens submitted a privilege log together with documents "arguably" responsive to Document Request 55 and Document Request 57. (Order of Jan. 30, 2014 (Dkt. No. 103) at 5.)

Thereafter, Judge Pollak reviewed over 900 pages of e-mail communications allegedly responsive to the requested documents that Defendant claimed were privileged.[1] On September 18, 2013, Judge Pollak issued an Order finding, among other things, that: (1) Defendant had waived his claims of attorney-client privilege and work-product protection, and (2) the privilege log belatedly produced to the Court was inadequate because the information on the log was insufficient to enable the Court to determine whether the documents were in fact privileged. Judge Pollak also found that, after reviewing the documents, Defendant failed to meet his burden of establishing that the documents were appropriately withheld under either attorney-client privilege or work-product protection. Defendant filed a Motion for Reconsideration on October 11, 2013. On January 30, 2014, Judge Pollak denied the Motion for Reconsideration in its entirety, ordering that Clemens produce all previously ordered documents and submit any remaining documents he claimed to be privileged for a second in camera review, to take place at a date set by Judge Pollak.

On February 7, 2014, Defendants filed a Motion to Modify or Set Aside and Stay Orders pursuant to Federal Rule of Civil Procedure 72(a). (Dkt. No. 104.) Thereafter, on February 14, 2014, Plaintiff filed an opposition to the Motion. (Dkt. No. 105.)


A. Standard of Review

A magistrate judge is empowered by the Federal Magistrate's Act and Federal Rules of Civil Procedure 72 to make findings as to non-dispositive pretrial matters, such as discovery matters, which may not be disturbed by a district judge absent a determination that such findings were "clearly erroneous or contrary to law." See 28 U.S.C. ยง 636(b)(1)(A); Fed. R.Civ. P. 72(a); see also Thomas E. Hoar Inc. v. Sara Lee Corp., 990 F.2d 522, 525 (2d Cir. 1990), cert. denied, 498 U.S. 846 (1990) (finding that pretrial discovery matters "generally are considered nondispositive' of the litigation, " and thus subject to this deferential standard of review); Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010).

Under the "clearly erroneous" standard of review, a district court may reverse a magistrate's finding only if it is "left with the definite and firm conviction that a mistake has been committed." Mobil Shipping and Transp. Co. v. Wonsild Liquid Carriers, Ltd., 190 F.3d 64, 67-68 (2d Cir. 1999) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)) (internal quotations omitted); see also United States v. U.S. Gypsum Co., 333 U.S. 364 (1948); United States v. Isiofia, 370 F.3d 226, 232 (2d Cir. 2004). Similarly, under the "contrary to law" standard of review, a district court may reverse a finding only if it finds that the magistrate "fail[ed] to apply or misapplie[d] relevant statutes, case law or rules of procedure." Catskill Dev., LLC v. Park Place Entm't, 206 F.R.D. 78, 86 (S.D.N.Y. 2002) (internal quotations omitted). Pursuant to this highly deferential standard of review, magistrate judges are thus afforded broad discretion in resolving discovery disputes, and reversal is appropriate only if that discretion is abused. See Thomas E. Hoar, Inc., 900 F.2d at 524; United States v. District Council, 782 F.Supp. 920, 922 (S.D.N.Y. 1992). "A court abuses its discretion when its decision rests on an error of law or on a clearly erroneous factual finding, or when its decision - though not necessarily the product of a legal error or a clearly ...

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