FILED: NEW YORK COUNTY CLERK 09/15/2015 06:14 PM INDEX NO. 652396/2014 NYSCEF DOC. NO. 67 RECEIVED NYSCEF: 09/15/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JOHN HARADA, Index No. 652396/2014 Plaintiff, -against- LIU DAN, MEE-SEEN LOONG, MEE-SEEN LOONG FINE ART, LLC, JOHN DOES 1-10, and XYZ CORP., Defendants. REPLY MEMORANDUM OF LAW ON BEHALF OF NONPARTIES RICHARD KILSHEIMER, ESQ., KAPLAN FOX & KILSHEIMER LLP, AND MEE-SEEN LOONG IN SUPPORT OF THEIR MOTION TO QUASH AND FOR A PROTECTIVE ORDER
Table of Authorities Page(s) Cases In re Alyssa F., 112 Cal. App. 4th 846 (2003)... 3 In re Gleich, 111 A.D.2d 130 (1st Dep't 1985)... 4 Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 A.D. 3d 532 (1st Dep t 2010)... 4 Lee v. Kucker & Bruh, LLP, No. 12 CIV. 4662 BSJ JCF, 2013 WL 680929 (S.D.N.Y. Feb. 25, 2013)... 5 Schlosser v. Schlosser, 7 Misc. 3d 1012(A) (Sup. Ct. N.Y. County 2005)... 2 Steinberg v. Disalvo, 2008 WL 2597972 (Sup. Ct. Nassau County June 16, 2008)... 5 Stewart v. New York City Transit Auth., 112 A.D.2d 939 (2d Dep't 1985)... 4 Tener v. Cremer, 89 A.D.3d 75 (1st Dep't 2011)... 5 Tieman v. Davies, Turner & Co., 261 A.D. 376 (1st Dep't 1941)... 3 United States v. Yonkers Bd. of Educ., 946 F.2d 180 (2d Cir. 1991)... 5 Rules CPLR 2304... 1 CPLR 3102(c)... 4 CPLR 3103(a)... 1, 2 CPLR 3120... 1, 2 CPLR 3120(1)... 2 CPLR 3214... 1 i
Nonparties Richard J. Kilsheimer, Esq., Kaplan Fox & Kilsheimer, Esq., and Mee-Seen Loong submit this reply memorandum in support of their motion pursuant to CPLR 3103(a) and 2304 for a protective order and to quash three broad subpoenas. Plaintiff s principal argument against the nonparties motion is that he is entitled to pursue discovery without limitation once he has filed a complaint. However, while discovery may commence after the filing of a complaint, CPLR 3120, it is automatically stayed upon the filing of a motion to dismiss, CPLR 3214. The policies expressed by that rule is that while broad discovery is a feature of our litigation system, that same discovery is often expensive and intrusive, and should not be imposed where there is an ongoing challenge to the basic viability of the underlying claims. Ms. Loong not only filed a motion to dismiss the claims against her, but was entirely successful in that motion. The only remaining defendant has not been served although this action has been pending for well over a year. The key issue posed by the current motion is whether discovery should proceed against a former defendant and her counsel in an action under the following circumstances: (1) the plaintiff has failed to serve the only other named defendant, a Chinese citizen who does not reside in the United States; (2) all claims against the former defendant have been dismissed because of untimeliness or other fundamental pleading deficiencies that call into question the viability of plaintiff s claims against the unserved defendant; (3) there has been no preliminary conference with the Court to address discovery in the case under 202.12 of the Rules of the Supreme Court, because there is no active defendant in the case; 1
(4) the discovery seeks a deposition and documents from counsel for the former defendant who has been and remains adverse to the plaintiff in the pending action; (5) the discovery sought from Ms. Loong is uncabined (all documents and information related to the allegations in the Complaint ) and is not limited to the claims that may be viable in light of the Court s prior ruling; (6) the discovery sought will be expensive, both in terms of attorney time and in terms of the costs of the restoration of back-up tapes; and (7) Ms. Loong is willing to provide what information she has about the current address of Liu Dan in a sworn affidavit. The nonparty-movants have searched in vain for a single case in a similar procedural posture, and the plaintiff has cited none. Plaintiff instead quotes out of context McKinney s Supplementary Practice Commentaries, which state that CPLR 3120(1) presumes to give the plaintiff in a supreme court action an opportunity to serve a discovery notice on the defendant before the defendant is even aware that an action has been commenced. N.Y. C.P.L.R. 3120 (McKinney), at C3120:3. However, plaintiff neglects to quote the same Commentary s conclusion that the [t]he service of a CPLR 3120 notice on a defendant prior to service of the summons and complaint should never be allowed because of a lack of jurisdiction over the defendant. Id. As the Commentary advises, there is an obvious solution to the problem: [a]lthough no time other than after commencement is specified in CPLR 3120, the court has the power to vary this by protective order under CPLR 3103(a). Id. Plaintiff also cites Schlosser v. Schlosser, 7 Misc. 3d 1012(A) (Sup. Ct. N.Y. County 2005), a case in which a nonparty protested that a subpoena had been served upon him that bore the same date as the summons and complaint. The court held that there would be no prejudice to 2
the defendants because the pleadings and the notice of the subpoena were in fact served upon them, i.e. defendants had the opportunity to object or participate in the discovery. Id. Here in contrast, the prejudice and likely unnecessary burden upon the nonparties is substantial. They are being asked to provide costly and invasive discovery in an action that grows less and less viable with the passing of each day. There is also a serious risk that Liu Dan, if he is ever successfully served, will object to plaintiff s use of this discovery and will demand additional discovery and depositions from the same nonparties because he did not have an opportunity to cross-examine, assert objections, or cross-notice the discovery. See, e.g. Tieman v. Davies, Turner & Co., 261 A.D. 376 (1st Dept. 1941) (deposition taken without notice to adverse party inadmissible at trial). Plaintiff s repeated and unsupported assertion that Liu Dan is evading service and thus has no right to participate in discovery in an action pending only against him has no basis in the law. It is a civil plaintiff s obligation to properly serve all defendants, and difficulties because a defendant is a Chinese citizen residing within China, who can only be served by the Chinese Central Authority through the Hague Convention, does not give plaintiff carte blanche to take discovery in his absence. See, e.g. In re Alyssa F., 112 Cal. App. 4th 846, 852 (2003), as modified on denial of reh'g (Oct. 14, 2003) ( Failure to properly serve a party who resides outside the country under the Hague Service Convention renders all subsequent proceedings void as to that person....this is true even when the party indisputably had notice of the action. ). Plaintiff s argument that early discovery is necessary to serve Liu Dan is a straw man. Plaintiff admits that he has already provided the Chinese Central Authority the information required to effect service Liu Dan s address. Plf. Opp. at 4 ( a private investigator hired by Harada was able to locate Liu Dan s residence in China ). Further, in their meet-and-confer discussions with plaintiff s counsel, the nonparties counsel offered a compromise under which 3
the subpoenas would be withdrawn in exchange for Ms. Loong providing her knowledge of Liu Dan s address and contact information in the form of a sworn affidavit. This would have been a quick and efficient way for plaintiff to receive the information he is purportedly seeking with minimal burden on the nonparties. But Plaintiff rejected the offer. The reason for that rejection is obvious. Liu Dan s address is merely the hook to an attempted fishing expedition seeking any possible support for new claims against Ms. Loong, the only possible defendant residing within the United States and within the subpoena power of the Court. See, e.g., Law Firm of Ravi Batra, P.C. v. Rabinowich, 77 A.D.3d 532, 533 (1st Dep t 2010) (a subpoena may not be used to condone a fishing expedition to discovery the existence of evidence). Plaintiff s maneuver violates the same policy that limits pre-action discovery of evidence. See, e.g. Stewart v. New York City Transit Auth., 112 A.D.2d 939, 940 (2d Dep t 1985) ( [p]re-action disclosure under CPLR 3102(c) is not available to the would-be plaintiff to determine if he has a cause of action ); In re Gleich, 111 A.D.2d 130, 132 (1st Dep t 1985) ( A plaintiff seeking an examination of a defendant to frame a complaint must show his case has merit. ) That plaintiff wishes to hunt for information for a new complaint by deposing Ms. Loong s litigation counsel and by rummaging through her counsel s files makes these subpoenas unprecedented. Belatedly, plaintiff argues that [t]he Subpoenas to Loong s attorneys would not be necessary if Loong did not refuse to produce relevant documents in this case, which would include her attorneys communications with Dan and his agents. Plf. Opp. at 2. However, the subpoenas on Ms. Loong s attorneys were served at the same time as the subpoena on Ms. Loong. Moreover, if Ms. Loong were required to respond to her subpoena, she will do so, including producing all non-privileged, responsive documents. This would include documents of 4
the type annexed to the plaintiff s opposition papers. However, Attorney Kilsheimer s communications about an ongoing litigation are not relevant to the allegations in the complaint and any naked request for such communications is an unfair intrusion into adverse counsel s preparation and strategy. See, e.g., United States v. Yonkers Bd. of Educ., 946 F.2d 180, 185 (2d Cir. 1991) ( depositions of opposing counsel are disfavored ). Accord Lee v. Kucker & Bruh, LLP, No. 12 Civ. 4662 BSJ JCF, 2013 WL 680929 (S.D.N.Y. Feb. 25, 2013) (discussing standard for opposing counsel discovery); Steinberg v. Disalvo, No. 6667-07, 2008 WL 2597972, at *1 (Sup. Ct. Westchester County June 16, 2008) (denying discovery request after applying three-prong Shelton test). Mr. Kilsheimer has no knowledge of this litigation other than what was acquired in his role as adverse counsel, and should neither have his files searched nor be subject to a deposition by opposing counsel. Plaintiff s opposition fails to respond to or challenge in any way the estimated cost for searching for documents in response to the subpoena that has been served on Kaplan Fox, which is estimated to fall between $20,000-$35,000 for IT expenses alone, regardless of whether such a search actually results in locating any non-privileged relevant documents. And this figure does not include the time and effort for counsel to review any hits from this process to determine whether they are responsive, and if so, are not privileged. There are no grounds for a nonparty to shoulder such burden and expense in a case in which the only remaining defendant might never be successfully served, and if the discovery here is ordered, the actual cost should be borne by the requesting party. Tener v. Cremer, 89 A.D.3d 75, 79, 82 (1st Dep t 2011) (adopting standard to determine whether a nonparty is required to restore electronically stored information and requiring cost-shifting to requesting party). 5
The motion for a protective order quashing the subpoenas served upon nonparties Richard J. Kilsheimer, Esq., Kaplan Fox & Kilsheimer LLP, and Mee-Seen Loong should be granted. Dated: September 15, 2015 Respectfully submitted, KAPLAN FOX & KILSHEIMER LLP By:_/s/ Elana Katcher 850 Third Avenue, 14 th Floor New York, New York 10022 (212) 687-1980 Attorney for Nonparties Richard J. Kilsheimer, Esq., Kaplan Fox & Kilsheimer LLP, and Mee-Seen Loong 6