McConkey v. The Churchill School and Center
- Lewis Liman
- 1:24-cv-06091
- U.S. District Court · Southern District of New York
- 4
In Dennis McConkey v. The Churchill School and Center, Judge Liman denied Churchill’s motion to compel discovery.
Dennis McConkey and The Churchill School and Center, particularly their obligations and requests concerning discovery in McConkey’s employment lawsuit.
What happened
In Dennis McConkey v. The Churchill School and Center, Churchill asked the court to require Dennis McConkey to produce additional documents in his employment-discrimination lawsuit. Churchill said the missing materials included text messages, emails, job-search records, communications with lawyer friends, and emails forwarded from his work account.
Churchill argued that these documents were relevant to McConkey’s claims and requested damages, including lost wages and emotional-distress damages. It also argued that some communications McConkey had described during his deposition were not protected by attorney-client privilege.
The court denied the motion to compel. The stated reason was that a party cannot be required to produce documents that the party does not possess or cannot obtain. Judge Lewis J. Liman issued the ruling.
The detailed version
- McConkey v. The Churchill School and Center · No. 1:24-cv-06091
- Lewis Liman
- Nov. 24, 2025
Background
The opinion concerns discovery in Dennis McConkey’s lawsuit against The Churchill School and Center. According to Churchill’s submission, McConkey was a former art teacher who alleged that Churchill terminated him because of his age and sexual orientation and in retaliation for purported complaints. The submission states that McConkey brought claims under the Age Discrimination in Employment Act, Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. These allegations and the description of the termination were presented by Churchill.
Motion to Compel
Churchill asked the court to compel McConkey to produce additional discovery under Rules 26(b)(1) and 34 of the Federal Rules of Civil Procedure. The requested categories included:
- Text messages with identified witnesses, both before and after McConkey’s termination; - Emails and other communications with Wendy Federico; - Job applications, employer responses, job offers, and other records concerning his job search and efforts to reduce his claimed lost wages; - Communications with three friends who were lawyers but whom McConkey did not retain as attorneys; and - Additional communications forwarded from his Churchill work account to his personal email account.
Churchill argued that McConkey’s deposition testimony showed that additional documents existed. It also argued that attorney-client privilege did not protect communications with the non-retained lawyer friends because, according to Churchill, McConkey described those people as friends rather than attorneys providing legal advice.
Ruling
The court denied Churchill’s motion to compel. The opinion quoted the rule that a party is not required to produce, at the risk of sanctions, documents that the party does not possess or cannot obtain. The text provided does not include a separate discussion resolving each of Churchill’s five document categories or explaining whether the court accepted or rejected the privilege arguments individually.
Judge Lewis J. Liman issued the ruling.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.