Gardner-Alfred v. Federal Reserve Bank of New York
- Lewis Liman
- 1:22-cv-01585
- U.S. District Court · Southern District of New York
- 11
In Gardner-Alfred v. Federal Reserve Bank, Judge Liman partly granted and partly denied plaintiffs’ request to compel discovery about documents held by the defendant.
Lori Gardner-Alfred and Jeanette Diaz obtained an order requiring the Federal Reserve Bank of New York to produce previously exchanged discovery documents, subject to costs, but not broader records about the parties’ document-search process. The ruling also addressed the unpaid former counsel’s asserted retaining and charging liens.
What happened
In Gardner-Alfred v. Federal Reserve Bank of New York, former employees sued after the bank terminated them for not complying with its COVID-19 vaccination requirement. They alleged violations involving religious freedom and religious discrimination. Their new lawyers asked the bank to provide documents exchanged during discovery.
The bank argued that producing the documents could interfere with the unpaid former lawyer’s right to keep client papers as security for payment. The court distinguished between documents already shared during discovery and the former lawyer’s private case file, work product, and judgments about the case. It also recognized that the bank could require plaintiffs to pay reasonable production costs and attorneys’ fees.
Judge Lewis J. Liman granted the motion to compel in part and denied it in part. The bank must provide documents previously exchanged or produced in discovery, subject to production costs, but it need not provide the broader collection of communications and records about what documents lawyers searched, reviewed, or proposed searching because that request sought protected work product and improper discovery about discovery.
The detailed version
- Gardner-Alfred v. Federal Reserve Bank of New York · No. 1:22-cv-01585
- Lewis Liman
- Dec. 27, 2022
Background
Lori Gardner-Alfred and Jeanette Diaz were former employees of the Federal Reserve Bank of New York. According to the opinion, the bank terminated them for failing to comply with a requirement that all bank employees be vaccinated against COVID-19. They claimed that the bank violated their rights under the First Amendment and the Religious Freedom Restoration Act, and that it discriminated against them based on religion under Title VI of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
The plaintiffs originally represented themselves but later were represented for most of the litigation by Andrew M. St. Laurent of Harris St. Laurent & Wechsler LLP. The court allowed that lawyer to withdraw after he reported an irreconcilable conflict with the plaintiffs. He asserted charging and retaining liens based on unpaid legal fees. A retaining lien is a lawyer’s right, under certain circumstances, to keep client papers and other property in the lawyer’s possession until payment or adequate security is provided. A charging lien is a separate right connected to money recovered in the case.
The plaintiffs’ new lawyers asked the bank to produce two categories of documents: (1) copies of all documents previously produced by any party in the case, and (2) documents and communications showing what materials any party searched, reviewed, or proposed searching or reviewing in responding to the first request. The bank relied mainly on the former lawyer’s retaining lien and also objected that the requests were too broad, burdensome, and disproportionate.
Court’s analysis
The court held that the first request was different from a request ordering the former lawyer to surrender the entire case file. The request covered documents that the former lawyer had voluntarily given to the bank, documents the bank had given to the former lawyer, and documents in the bank’s possession that third parties had produced to both sides. It did not seek materials collected by the former lawyer but never produced, the former lawyer’s work product, or the lawyer’s judgments about which materials mattered.
The court explained that a retaining lien depends on the lawyer’s possession of the papers and generally can be lost when the lawyer voluntarily gives them to someone else. The lien therefore did not prevent the bank from giving plaintiffs copies of discovery materials already in the bank’s possession. The court also noted that the former lawyer had a charging lien, which could protect payment from any monetary recovery in the case. The court questioned a different decision that had protected a defense lawyer’s retaining lien in similar circumstances, reasoning that a retaining lien and a charging lien protect different interests.
The court nevertheless recognized that producing the documents could impose duplication, searching, copying, and related costs on the bank. Under Federal Rule of Civil Procedure 26, the court could require the requesting party to pay the opposing party’s production costs and reasonable attorneys’ fees. The bank would therefore be entitled to those costs as a condition of producing the documents.
The court reached a different conclusion about the second request. It found that the request sought more than relevant documents in the bank’s possession, custody, or control. As drafted, it sought attorney work product, including information about proposals and communications concerning the search for documents, and amounted to “discovery on discovery.” The plaintiffs did not have the right to obtain that information from their adversary through this request. The opinion stated that they would need either the bank’s agreement or to satisfy the retaining lien, or ask the court to require the former lawyer to provide the information.
Disposition
The court granted in part and denied in part the plaintiffs’ motion to compel. It granted the motion as to the first request for previously produced documents, subject to the bank’s right to recover production costs and reasonable attorneys’ fees. It denied the motion as to the second request for records and communications about documents searched, reviewed, or proposed for review. The court directed the Clerk of Court to close the motion docket entry.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.