Mahulawde v. Fashion Institute of Technology
- Paul Engelmayer
- 1:21-cv-03878
- U.S. District Court · Southern District of New York
- 3
In Mahulawde v. Fashion Institute of Technology, Judge Engelmayer denied a deposition request as moot and ordered more detail about withheld discovery.
Dawnn Karen Mahulawde and the defendants in the case, particularly regarding the scheduling of a deposition and the defendants’ withholding of investigative materials.
What happened
In Mahulawde v. Fashion Institute of Technology, Dawnn Karen Mahulawde asked the court to resolve two discovery disputes. One concerned the deposition of Deliwe Kekana; the other concerned materials that the defendants withheld under a claimed “self-critical” privilege.
The court understood that the parties had scheduled Kekana’s deposition for November 18, 2022, so it denied Mahulawde’s request to compel that deposition as moot, without prejudice to renewing the request if the deposition did not occur. The court did not accept the defendants’ current explanation for withholding the other materials, finding that their descriptions were too general.
Judge Engelmayer ordered the defendants to submit a revised privilege log and provide the materials for private court review by November 17, 2022. He also directed them to identify and justify only specific portions they sought to withhold, while allowing a set of the binders to be filed under seal.
The detailed version
- Mahulawde v. Fashion Institute of Technology · No. 1:21-cv-03878
- Paul Engelmayer
- Nov. 10, 2022
Background
The court considered the parties’ letters about pending discovery disputes. Plaintiff Dawnn Karen Mahulawde sought to compel the deposition of Deliwe Kekana and challenged defendants’ withholding of materials based on the claimed “self-critical” privilege.
Deposition request
The court inferred that counsel had resolved the dispute about Kekana’s deposition and that the deposition was scheduled for November 18, 2022. It therefore denied plaintiff’s request to compel the deposition as moot, without prejudice to renewal if the deposition did not go forward.
Claimed privilege and withheld materials
The court stated that the existence of a self-critical privilege was unresolved in the Southern District of New York. It explained that, even if the privilege exists, the party resisting discovery must make a detailed and convincing showing of the harm that disclosure would cause in the particular case.
The court found that defendants’ privilege log provided only brief and general descriptions of the withheld materials and fell far short of that standard. It also expressed concern about defendants’ attempt to withhold the Investigative Files in their entirety. The court noted that the claimed privilege, to the extent it exists, applies only to analysis or evaluation and not to the facts underlying that evaluation. It further stated that interview reports are likely to be substantially factual and that defendants had not adequately shown that disclosure would cause the claimed chilling effect.
Orders
The court directed defendants, by November 17, 2022, to file a revised privilege log narrowing the withheld material to specific and discrete portions and explaining specifically why those portions qualified as analytical self-critical material. By the same date, defendants also had to hand-deliver two sets of binders to the court for private judicial review, with each document separately tabbed and proposed redactions highlighted. Defendants were authorized and directed to file one set of the binders under seal. The order did not finally decide whether the claimed privilege exists or whether any particular document was protected.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.