Mitura v. Finco Services, Inc.

Background

Isabelle Mitura sued Finco Services, Inc., doing business as Current, Alex Sergiyenko, and Stuart Sopp. The opinion states that Mitura alleged discrimination and retaliation under federal, state, and city law, including disparaging remarks based on gender, age, race, and familial status and termination after she complained about harassment and gender-pay disparities.

In approximately April 2024, Mitura served a deposition subpoena on Jodi Golinsky, Current’s former General Counsel. Golinsky held that position from September 9, 2021, until her resignation effective November 11, 2022. Mitura alleged that she and Golinsky were two of the only women in upper management and that Mitura had confided in Golinsky about discriminatory conduct.

Motion and Positions

Current moved to quash, or cancel, the deposition subpoena and requested a protective order. Current argued that Golinsky might disclose confidential information protected by attorney-client privilege or the work-product doctrine. Current also argued that documents concerning Current’s culture or discrimination were privileged because Golinsky possessed them as the former General Counsel.

Mitura agreed to limit the deposition and document requests to three subjects: discrimination Golinsky personally experienced; discrimination against other Current employees that Golinsky witnessed, including informal reports or complaints received outside her role as counsel; and whether Current effectively investigated employee complaints or took preventive actions. Mitura also agreed that Current’s lawyers could initially take possession of documents from Golinsky to review them for privilege.

Legal Standard

Federal Rule of Civil Procedure 26 permits discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. Rule 30 generally permits a party to depose any person, including an attorney. Rule 26 also allows a court to limit discovery to protect against annoyance, embarrassment, oppression, undue burden, or expense.

The court applied the flexible approach described by the Second Circuit for lawyer depositions. That approach considers the need for the deposition, the lawyer’s role in the subject of discovery and the litigation, the risk of privilege or work-product issues, and the extent of discovery already completed. The court did not apply a categorical rule barring the deposition of a lawyer.

Analysis

The court ruled that Golinsky’s deposition could proceed in a limited manner without imposing an inappropriate burden or hardship on Current. Mitura could question Golinsky about discrimination she personally experienced and discrimination against other Current employees that she witnessed, including reports and complaints she received informally and outside her role as counsel. The court found these subjects concerned nonprivileged matters within Golinsky’s knowledge outside her former legal role.

The court did not allow Mitura’s third topic as broadly framed—whether Current responded to employee complaints with effective investigations or preventive actions—because that subject could implicate Golinsky’s former role as General Counsel. The court rejected Current’s argument that asserting a defense based on effective antidiscrimination policies automatically waived privilege concerning all investigations. The court stated that any waiver related only to Current’s investigation of Mitura’s complaint, not prior investigations of other employees’ complaints.

Current stated that Golinsky was not involved in investigating Mitura’s allegations. The court therefore prohibited topic three if that statement was correct, but allowed Mitura’s counsel to ask Golinsky whether she participated in any investigation of Mitura’s allegations. If Golinsky had participated, counsel could ask how Current investigated those allegations and what preventive or corrective actions were taken.

The court found that the relevant factors supported the limited deposition. Golinsky had relevant personal knowledge, was not Current’s trial counsel, and had not been an in-house lawyer responsible for this litigation. The court found minimal privilege and work-product risk for the first two topics and limited the third topic to any privilege waiver and the resulting subject matter. Current’s counsel could attend the deposition and assert privilege when necessary.

For documents, the court ordered Current’s counsel to take initial possession and review them for privilege. Counsel must then provide Mitura’s counsel with nonprivileged documents or portions of documents, together with a log identifying privileged documents or information withheld, as required by the cited federal and local rules.

Disposition

The court granted in part and denied in part Current’s letter motion to quash the subpoena and obtain a protective order. The deposition may proceed on the two approved discrimination topics and, if applicable, the limited investigation topic. The court also ordered the document-review procedure described above. Separately, the parties were ordered to show cause by July 15, 2024, why certain redacted portions of sealed filings should remain under seal.