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BAT LLC v. TD Bank N.A.

United States District Court, E.D. New York

July 30, 2018

BAT LLC, Plaintiff,
TD BANK, N.A. et al., Defendants.


          Cheryl L. Pollak, United States Magistrate Judge

         On August 3, 2015, plaintiff BAT LLC (“BAT”) commenced this action in the Supreme Court of New York, Kings County, against defendants TD Bank, N.A. (“TD Bank”) and ADT LLC (“ADT”), [1] alleging a breach of contract claim and a violation of New York Banking Law § 338 against TD Bank, and gross negligence claims against both TD Bank and ADT in connection with a safety deposit box located at 1602 Avenue U, Brooklyn, New York (the “Avenue U branch”). On October 9, 2015, the action was removed to this Court.

         On September 15, 2016, BAT filed the Fourth Amended Complaint naming Lydia Security Monitoring, Inc., d/b/a COPS (“COPS”), Halifax Security, Inc. (“Halifax”), and Integrated Security Systems (“Integrated”), alleging negligence and breach of contract on a third party beneficiary theory.

         Currently pending before this Court are a series of discovery disputes. The Court deals with each in turn.


         BAT, a limited liability company organized under the laws of the State of New York, brings this suit in an effort to recover damages in connection with property alleged to have been stolen from the TD Bank safe deposit box during the August 2012 robbery of the Avenue U branch. (See generally 4th Am. Compl., Sept. 15, 2016, ECF No. 46). BAT alleges that it is the assignee of “all rights and claims” held by Chaya Bienenstock and Yaakov Bienenstock (the “Bienenstocks”). (Id. ¶ 2). It is alleged that the Bienenstocks entered into a contract with TD Bank on June 10, 2010, to lease a safe deposit box at the TD Bank Avenue U branch. (Id. ¶ 15). In exchange for an annual rental fee, TD Bank “agreed to safeguard and store the items that Plaintiff placed in its safe deposit box in the secured vault located” at the branch. (Id. ¶ 16). Plaintiff claims that at some time in June 2010, “valuables in excess of $250, 000, ” of which plaintiff “is the owner and assignee of all ownership rights” were placed into the safe deposit box. (Id. ¶ 21).

         On August 5 into 6, 2012, there was burglary at the Avenue U branch of TD Bank. COPS was the alarm monitoring company at the time. (COPS 7/13/18 Letter[2] at 1). During the burglary, the telephone wires at the bank were cut resulting in a code being sent to COPS reflecting that the TD Bank panel was not responding. (Id.) According to COPS, within 120 minutes after the code was received by COPS, TD Bank was notified and the proper procedure was followed. (Id.)

         COPS claims that the other defendant, Integrated, had a Central Office Monitoring service contract that included rental of communication software. (Id.) According to COPS' letter of July 13, 2018, the agreement did not include installation or maintenance of telephone lines, equipment or hardware and the Integrated contract specifically excludes responsibility for “any failure which prevents transmission signals from reaching the central office monitoring system or damages arising therefrom.” (Id.) The Integrated contract further provided that “there are no third party beneficiaries of this contract.” (Id. at 2). According to COPS, it was a subcontractor to Integrated and a wholesale provider of signal monitoring services; it had no contract with TD Bank and the statute of limitations bars the plaintiff's negligence claim. (Id.)


         A. BAT's Motion to Compel Production of Documents

         By letter dated February 26, 2018, BAT moves to compel the production of certain documents which plaintiff claims TD Bank has failed to disclose. (See generally BAT's Letter Mot. to Compel, Feb. 26, 2018, ECF No. 122 (“BAT's 2/26/18 Letter”)). These include: 1) all communications between TD Bank, Integrated, and COPS; 2) all documentation between the parties requesting monitoring services at the Avenue U branch; 3) all documents concerning Integrated's and COPS' monitoring services at “all TD Bank locations;” 4) all monitoring “Templates” “for all TD Bank branches;” 5) all documents “concerning all services provided and/or offered by Integrated and COPS to TD;” 6) emails from TD Bank's chief of security; 7) statements and documents TD Bank provided to the authorities relating to the robbery at the Avenue U branch; 8) all documents concerning the design and construction of the security system at the Avenue U branch; 9) all documents that TD Bank is required to maintain pursuant to 12 C.F.R. § 21.1-4, including the “reports and minutes of the board of directors, as required by 12 C.F.R. § 21.4; 10) detailed information about the security system, construction and locks at the Avenue U branch; and 11) information concerning the security and alarm of the basement at the Avenue U branch. (BAT's 2/26/18 Letter at 2-4). In addition, BAT's letter motion states: “The listing above and the following are only the general identify [sic] of documents being withheld by defendants, but primarily by TD Bank. It would unduly burden the Court to list each and every failure by defendants to provide documents.” (Id. at 3).[3]

         In response, TD Bank argues that plaintiff has failed to identify which document requests and interrogatories are at issue, and has not provided the relevant documents to the Court. (TD's Opp'n, Mar. 5, 2018, ECF No. 125 (“TD's 3/5/18 Letter”)). While the bank agrees that documents relating to the alarm and security system at the Avenue U branch are relevant, it maintains that it has produced all “relevant schematics, alarm system information, alarm maintenance records, documents evidencing all instances in which the alarm lost communication, and manuals concerning the alarm and security.” (Id. at 2). The bank also contends that is has provided all of the relevant contracts between the bank and its co-defendants relating to security. (Id.) As for the video and emails, the bank asserts that it has agreed to produce these items. (Id.) TD Bank asserts that it is has responded to all discovery served by plaintiff as of January 19, 2018 and that since that time, plaintiff served three Requests for Production of Documents and 157 Requests for Admission, the latter of which is addressed below.

         Having reviewed the parties' submissions, the Court notes as an initial matter that plaintiff's failure to comply with the Court's requirement that motions to compel discovery be accompanied by copies of the relevant requests or interrogatories initially made it difficult for the Court to evaluate and rule on the instant disputes. See L. Civ. R. 37.1 (providing that parties must quote verbatim each discovery request and response at issue in a motion); L. Civ. R. 37.3(c) (requiring parties to attach relevant materials to discovery motions).[4] After the Court directed BAT to comply with the Local Rule, BAT submitted some of the discovery requests and responses at issue on July 11, 2018, but failed to explain which requests corresponded to the categories of requests described in the letter motions. (See Electronic Order, July 5, 2018; BAT's 7/11/2018 Letter, ECF No. 130). The Court has reviewed the requests and responses themselves, but nonetheless issues its ruling with reference to the categories described in the parties' letters to promote efficiency in light of the number of requests at issue. This is a particularly appropriate way to proceed given that the parties appear to have viewed categories to be sufficient in the first instance and because a request-by-request ruling would not change the ultimate outcome.

         Based on the plaintiff's description of its own requests, the Court finds as follows:

         1. With respect to the first category of requests seeking all communications between TD Bank, Integrated, and COPS, the Court finds that the requests are overbroad and not limited by subject matter or time period. It is the duty of the party serving a request for production to draft a request that “describe[s] with reasonable particularity each item or category of items to be inspected.” Fed.R.Civ.P. 34(b)(1)(A). Indeed, by signing a discovery request, counsel certifies various statements about the request, including that the request is “neither unreasonable nor unduly burdensome or expensive.” Fed.R.Civ.P. 26(g)(1)(B)(iii); see also Fed.R.Civ.P. 26(g)(3) (providing that sanctions are mandatory if a certification violates the rule without substantial justification). In light of this duty, courts faced with overbroad requests need not narrow the scope of the request-though there certainly is discretion to do so-but may instead sustain the overbreadth objection and deny the requested discovery. As many courts have recognized, to narrow unreasonably overbroad discovery requests can “encourage litigants to demand the moon thinking they can always fall back to something reasonable, ” but “[t]hey should be reasonable from the start.” Boston Scientific Corp. v. Lee, No. 14 MC 80188, 2014 WL 3851157, at *7 n.59 (N.D. Cal. Aug. 4, 2014) (quoting Straight Path IP Group, Inc. v. Blackberry Ltd., No. 14 MC 80150, 2014 WL 3401723, at *1 (N.D. Cal. July 8, 2014)). It was incumbent on BAT to draft reasonable discovery requests that complied with Rule 34 before serving the requests on the defendants or, at the very least, to narrow the scope of the requests at the required meet-and-confer prior to requesting judicial intervention. Nonetheless, BAT did not draft or narrow its requests to make them reasonable and particular. The Court declines to do what BAT did not, and thus denies the motion to compel as to these requests. To the extent that TD Bank has agreed to produce emails in response to this request, the Court directs the parties to meet and confer as to the time period for the production and to limit the request to emails related to the Avenue U branch.

         In its July 13, 2018 letter, COPS complains that in plaintiff's letter of February 2, 2018, plaintiff suggests that COPS had not responded to the discovery requests. Plaintiff points to the single email produced by COPS and argues that COPS did not produce emails. COPS asserts that it searched and there was only one email. Given the representation that all e-mails have been produced and in the absence of any evidence to the contrary, the Court denies BAT's motion to compel additional e-mails from COPS.

         2. With respect to the requests for “all documentation between the parties requesting monitoring services at the Avenue U branch, ” plaintiff does not identify with sufficient specificity what documents it believes are missing. Plaintiff merely states that the defendants have not produced documents showing “when TD requested that Integrated and COPS provide monitoring services, when Integrated and COPS commenced and ceased providing monitoring services, or the specific guidelines of the monitoring services.” (BAT's 2/26/18 Letter at 2). Since defendant represents that it has produced all agreements, contracts and communications between TD Bank and the other defendants, it is not clear exactly what plaintiff is still seeking. Indeed, in its letter, COPS asserts that the discovery demands were not phrased in the way that plaintiff suggests in its letter and that COPS provided the contracts as to when service was provided. (COPS 7/13/2018 Letter at 3). Accordingly, the parties are to confer and plaintiff is to be very specific as to what it does not have.

         3. With respect to the requests for documents relating to “all of TD's locations, ” the Court finds that the requests are overly broad and not limited in time, and that no relevance has been shown to warrant production. These requests exceed the permissible scope of discovery, see Fed.R.Civ.P. 26(b)(1), and, once again, also fail to “describe with reasonable particularity” ...

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