Shih v. Petal Card, Inc.

Background

This order concerns discovery disputes in the case. Discovery is the pretrial exchange of information and documents between the parties. The order followed a January 26, 2022 status conference. The opinion text does not describe the underlying claims.

Deposition

The court found that Petal Card had improperly instructed its designated witnesses under Federal Rule of Civil Procedure 30(b)(6) not to answer certain questions about the company’s recent corporate reorganization on relevance grounds. Rule 30(b)(6) permits an organization to designate one or more people to testify about information known or reasonably available to the organization. The court ordered Petal Card to produce Mr. McCann for up to one additional hour of questioning on that subject by February 17, 2022.

Document production and privilege

The court ruled on three groups of documents identified in the parties’ January 19, 2022 joint letter. For the documents described in paragraph (a) on page 2 of that letter, defendants did not have to produce them. The court found that defendants had plausibly asserted that the documents were properly withheld under guidelines from the court’s October 6, 2021 order, and that plaintiffs had not provided persuasive evidence otherwise.

For the documents described in paragraph (b), defendants had to produce the listed emails by February 9, 2022. They also had to produce any other communications between Andrew Endicott and Jason Gross withheld under an “embedded privilege” theory that did not appear on the face of the privilege log. The court rejected defendants’ showing at that stage because the privilege log did not mention Kenneth Gross in connection with the paragraph (b) emails, and defendants had not shown that Kenneth Gross was or had been licensed to practice in New York, that Petal Card formed a professional relationship with him to facilitate legal advice or services, or that his advice was predominantly legal in character.

For the documents described in paragraph (c), defendants did not have to produce them. Although those documents also asserted privilege over communications to or from Kenneth Gross, the court found that the assertion was clear from the face of the privilege log and should have been challenged earlier.

Other orders and disposition

The court denied all relief not specifically granted. It scheduled a status conference before Judge Barbara Moses for April 20, 2022, and required the parties to submit a joint letter by April 15, 2022 updating the court on expert discovery and settlement efforts.