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Loguidice v. McTiernan

United States District Court, N.D. New York

August 3, 2017

ANDREA D. LOGUIDICE, Plaintiff,
v.
EDWARD MCTIERNAN, STUART BRODY BENJAMIN CONLON, MARLINE AGNEW, DEBORAH CHRISTIAN, PHIL LODICO, MARC GERSTMAN, and JOHN DOES 1-5, Defendants.

          BOIES SCHILLER & FLEXNER LLP Attorneys for Plaintiff

          GEORGE F. CARPINELLO, ESQ. JOHN F. DEW, ESQ.

          MICHAEL Y. HAWRYLCHAK, ESQ.

          HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Attorneys for Defendants

          COLLEEN D. GALLIGAN, ESQ. LOUIS JIM, ESQ.

          MEMORANDUM-DECISION AND ORDER

          CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

         Presently pending before the Court is plaintiff Andrea D. Loguidice's (“plaintiff”) motion to reconsider a portion of the Court's Memorandum-Decision and Order (“MDO”) which granted in part and denied in part her motion to compel discovery. Dkt. No. 48. The motion is limited to seeking reconsideration of the undersigned's ruling relating to the waiver of privilege associated with the memorandum written by defendant McTiernan on August 4, 2014, entitled “Termination of Andrea Loguidice” (hereinafter “McTiernan Memo”). Id. Defendants Edward McTiernan (“McTiernan”), Stuart Brody (“Brody”), Benjamin Conlon (“Conlon, ), Marline Agnew (“Agnew”), Deborah Christian (“Christian”), Phil Lodico (“Lodico”), and Marc Gerstman (“Gerstman”) (collectively, “defendants, ” where appropriate) oppose the motion. Dkt. No. 49. Nonparties the New York State Department of Environmental Conservation (“DEC”), The Governor's Office on Employee Relations (“GOER”), Maureen Coleman, and Ann Hohenstein (collectively, “non-parties, ” where appropriate), did not file a response. Plaintiff filed a reply. Dkt. No. 50. For the reasons that follow, plaintiff's motion for reconsideration is denied.

         I. Background

         The facts and circumstances surrounding this discovery dispute are outlined in the Court's August 25, 2016 MDO, and familiarity therewith is assumed. Briefly, in its pertinent part, the McTiernan Memo discusses McTiernan's conversations and meetings with Maureen Coleman (Governor's Counsel), Anne Hohenstein (DEC's contact at GOER), Lori Belgrade and Marc Cadrette (DEC personnel), and Mike Valforte (General Counsel at GOER). Id.; Dkt. No. 47 at 5. The McTiernan Memo also contains McTiernan's statement that, “‘[t]he advice I received was that this error in judgment was serious enough to warranted [sic] discipline in the case of a full time employee and termination of an employee in probation.” Id.

         On August 25, 2016, the undersigned issued an MDO in response to plaintiff's letter motion requesting assistance in resolving discovery disputes (Dkt. No. 27) and plaintiff's motion to compel defendants to provide various testimony and documents. Dkt. No. 41. As relevant here, the Court held that (1) McTiernan's discussions with DEC personnel Belgrade and Cadrette would likely not implicate the attorney-client privilege because they “would primarily result in non-legal questions [and] such conversations are not privileged”; (2) McTiernan did not have the authority to waive the DEC'S attorney-client privilege; (3) Gerstman had the implied authority to waive the DEC's attorney-client privilege by the nature of his position; whether it was waived is dependent on the document; and (4) even if McTiernan did have the authority to waive the attorney-client privilege on behalf of the DEC or if Gerstman did waive the privilege, this waiver cannot forfeit any privilege that GOER or the Governor's Counsel may have had regarding potential legal advice McTiernan obtained from Coleman, Hohenstein, and Valforte. Id. at 33-34, 37-39. Irrespective of the above determination, the undersigned held that plaintiff's Motion to Compel, insofar as it related to conversations with DEC personnel, was premature, as plaintiff failed to proffer questions or document requests before the Court with respect to any of the conversations McTiernan had with Belgrade and Cadrette. Id. With respect to legal advice McTiernan sought from GOER and Governor's Counsel, the motion was denied. Id.

         On September 7, 2016, plaintiff filed this Motion for Reconsideration with regard to this portion of the MDO, contending that the Court erred in its determination that defendants could not be compelled to testify as to conversations McTiernan had with GOER attorneys and Governor's Counsel, as well as conversations with DEC personnel Cadrette and Belgrade. Dkt. No. 48-1. Defendants argue that because McTiernan has yet to be deposed, “Plaintiff again seeks to obtain a court order with regard to matters that are premature.” Dkt. No. 49 at 2.

         II. Legal Standard

         In the Northern District of New York, all motions for reconsideration proceed under Local Rule 7.1(g).[1] The “clearly erroneous” standard of review applies in assessing a motion for reconsideration. Sumner v. McCall, 103 F.Supp.2d 555, 558 (N.D.N.Y. 2000). “Generally, the prevailing rule in the Northern District ‘recognizes only three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice.'” People ex rel. Vacco v. Rac Holding, Inc., 135 F.Supp.2d 359, 362 (N.D.N.Y 2001) (quoting In re C-TC 9th Ave. P'ship, 182 B.R. 1, 3 (N.D.N.Y. 1995)). These requirements prevent the moving party from simply relitigating issues already decided by the Court. See Shannon v. Verizon New York, Inc., 519 F.Supp.2d 304, 306 (N.D.N.Y. 2007). Moreover, “[t]he standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Motions for reconsideration are not favored, and are “‘properly granted only upon a showing of exceptional circumstances.'” Nakshin v. Holder, 360 F. App'x. 192, 193 (2d Cir. 2010) (summary order) (quoting Marrero Picardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004)).

         III. ...


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