United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. MANN CHIEF UNITED STATES MAGISTRATE JUDGE
pending before the Court, in these actions brought pursuant
to the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1961 et seq.,
is a motion filed by pro se defendants Alexander
Pinkusovich, M.D. and Svetlana Pinkusovich, M.D. (the
“Pinkusoviches”) to compel plaintiffs Allstate
Insurance Company, Allstate Indemnity Company, Allstate
Property & Casualty Insurance Company and Allstate Fire
& Casualty Insurance Company (collectively,
“plaintiffs” or “Allstate”) to
provide responses to defendants' Second Set of
Interrogatories and Demands to Produce and to cure alleged
deficiencies in the verification of plaintiffs' Responses
to Defendants' First Set of Interrogatories. See
Second Motion to Compel Proper 30(b) Responses to Defendants
First and Second Set of Interrogatories and to Produce (May
26, 2017) (“Sec. Mot. to Compel”), Electronic
Case Filing Docket Entry (“DE”)
#453. For the following reasons, the
Pinkusoviches' motion to compel is denied.
Set of Interrogatories and Demands to Produce
letter dated February 12, 2017, defendants Art of Healing
Medicine, P.C. and the Pinkusoviches (collectively, the
“defendants”), through their then-counsel, filed
a motion to compel raising the same issues as the instant
motion. See First Motion to Compel Proper
Interrogatory and Document Demand Responses (Feb. 12, 2017),
DE #383. At a motion hearing held on February 24, 2017, this
Court found that defendants' Second Set of
Interrogatories and Demands to Produce were untimely, since
they were served less than 30 days before the then-deadline
for the completion of fact discovery. See Transcript
of Civil Cause for Discovery Conference held on February 24,
2017 (Apr. 11, 2017) (“Tr.”) at 31, DE #412. This
Court also found that the motion to compel itself was
untimely because it was filed after the deadline set for
filing such motions. See id. at 30. The Court
nevertheless reviewed the untimely interrogatories and
document requests and concluded that the demands were,
“to put it mildly, sprawling. There are some that are
plainly improper . . . [and] a lot of what I would call
make[-]work . . . .” Id. at 32-33. The Court
determined that, “to the extent that there may be some
items in there that the plaintiff should have to respond to[,
. . .] at this point in time the inquiries [are] better put
to the 30(b)(6) witness.” Id. at 33.
Accordingly, the Court denied this aspect of defendants'
motion to compel.
the instant second motion to compel is also untimely, having
been filed almost two months after the extended date for the
completion of fact discovery, March 31, 2017. Notwithstanding
the untimeliness of the motion, this Court stands by its
rulings made at the February 24, 2017 conference denying this
aspect of the first motion to compel on substantive and
Set of Interrogatories and Document Demands
Court also previously addressed the issues raised here with
respect to Allstate's responses to defendants' First
Set of Interrogatories and Document Demands. Although it had
not been clear to the Court the precise nature of
defendants' objections to plaintiffs' responses, at
the February 24th conference, counsel for defendants
clarified that their primary objection was the absence of
written authorization for plaintiffs' counsel to verify
plaintiffs' discovery responses. See id. at
33-34. The Court denied without prejudice this aspect of
defendants' motion to compel and directed the parties to
confer further about the admissibility of the interrogatory
responses. See id. at 36.
Pinkusoviches raise substantially similar objections now, to
wit, that plaintiffs' responses to defendants' First
Set of Interrogatories and Document Requests are inadequate
because: there is no handwritten signature on the responses
themselves or the verification of the responses; the
responses are verified by counsel rather than by plaintiffs;
counsel's verification is not notarized; and
counsel's verification was not authorized by the client.
See Sec. Mot. to Compel at 2. Each of these
objections may be swiftly rejected.
plaintiffs' counsel's use of an electronic signature
on plaintiffs' responses to interrogatories and the
verification is permissible. See Pipino v. Delta Air
Lines, Inc., No. 15-cv-80330-MARRA/MATTHEWMAN, 2016 WL
2856003, at *3 (S.D. Fla. May 13, 2016); Gann v.
North-Central Ala. Reg'l Council of Gov'ts, No.
CV-13-S-270-NE, 2013 WL 6190799, at *3 & n.16 (N.D. Ala.
Nov. 26, 2013); Miller v. City of Plymouth, No.
2:09-CV-205-JVB-PRC, 2011 WL 1740154, at *17 (N.D. Ind. May
5, 2011). Rule 5(d)(3) of the Federal Rules of Civil
Procedure permits papers to be signed electronically.
See Fed.R.Civ.P. 5(d)(3). Rule 26(g) requires that
discovery responses be signed by the attorney of record.
See Fed.R.Civ.P. 26(g)(1). Rule 33(b)(5) requires
that answers to interrogatories be signed by “[t]he
person who makes the answers.” See
Fed.R.Civ.P. 33(b)(5). Neither Rule 26 nor Rule 33 mandates
that the requisite signatures be handwritten rather than
Rule 33 expressly permits a corporation or other entity to
answer interrogatories “by any officer or agent.”
See Fed.R.Civ.P. 33(b)(1)(B). Thus, it is entirely
proper for plaintiffs' outside counsel to verify
plaintiffs' interrogatory responses, as their agent.
See Ritchie Risk-Linked Strategies Trading (Ireland),
Ltd. v. Coventry First LLC, 273 F.R.D. 367, 368, 370
(S.D.N.Y. 2010); Shire Labs., Inc. v. Barr Labs.,
Inc., 236 F.R.D. 225, 227-28 (S.D.N.Y. 2006). The case
cited by the Pinkusoviches in their reply, Jacob v. City
of New York, No. 07cv04141 (KAM)(MDG), 2009 WL 383752
(E.D.N.Y. Feb. 6, 2009), does not support their position.
See Reply (June 2, 2017) (“Pinkusovich
Reply”), DE #459. In that case, unlike here, the
attorney for the City of New York did not provide any
verification of the City's interrogatory responses and
the City refused to answer plaintiffs' interrogatory
seeking the identification of those who provided information
to respond to the interrogatories. In fact, there, the court
expressly found that counsel for the City is permitted to
verify his client's interrogatory responses. See
Jacob, 2009 WL 383752, at *2.
although counsel's verification in this case was not
sworn to before a notary, see Sec. Mot. to Compel,
Ex. C at 22, it conforms with the requirements of 28 U.S.C.
§ 1746, which permits an unsworn declaration to be made
under penalty of perjury. See LeBoeuf, Lamb, Greene &
MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 & n.2
(2d Cir. 1999) (finding admissible as affidavit, an unsworn
letter that met requirements of 28 U.S.C. § 1746);
Batista v. United States, 14-CV-895 (DLI)(LB), 2016
WL 4575784, at *3-*4 (E.D.N.Y. Aug. 31, 2016). The
verification of plaintiffs' counsel, Daniel Marvin,
states that he “affirms under penalty of perjury, as
follows . . . .” Sec. Mot. to Compel, Ex. C at 22.
Counsel's statement substantially complies with the
the Pinkusoviches argue that counsel's verification must
be accompanied by an authorization from plaintiffs. This
appears to be a rehashing of an argument the Pinkusoviches
have raised many times in various motions -- that this case
is a product of rogue attorneys acting without the authority
of their clients. Rule 33 does not require any such written
authorization and this Court is not aware of any other basis
that requires plaintiffs to produce an authorization. The
Pinkusoviches' theory strains credulity and, as
plaintiffs point out, Allstate's authorization and
participation in this action are evidenced by plaintiffs'
production of Allstate documents and Allstate-designated
corporate representatives for deposition. Moreover, Mr.
Marvin's verification, affirmed under penalty of perjury,
states that he is “authorized to submit this response
on behalf of Plaintiffs.” See Sec. Mot. to
Compel, Ex. C at 22. In reply, as purported evidence that
plaintiffs' counsel has been proceeding without
authorization, the Pinkusoviches rely on the fact that the
witnesses produced by Allstate, pursuant to Rule 30(b)(6) of
the Federal Rules of Civil Procedure, are not officers or
managing agents of the corporate entities. See Pinkusovich
Reply at 2. However, this too was raised in ...