United States District Court, N.D. New York
ANDREA D. LOGUIDICE, Plaintiff,
EDWARD MCTIERNAN, STUART BRODY BENJAMIN CONLON, MARLINE AGNEW, DEBORAH CHRISTIAN, PHIL LODICO, MARC GERSTMAN, and JOHN DOES 1-5, Defendants.
SCHILLER & FLEXNER LLP Attorneys for Plaintiff
F. CARPINELLO, ESQ. JOHN F. DEW, ESQ.
MICHAEL Y. HAWRYLCHAK, ESQ.
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
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.
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.”
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.
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
Northern District of New York, all motions for
reconsideration proceed under Local Rule
7.1(g). 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)).