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Decision and Order Re Kasowitz letter

Decision and Order Re Kasowitz letter

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Published by: steven_musil on Aug 15, 2012
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FACEBOOK, INC.,Defendants.  APPEARANCES:PAUL A. ARGENTIERI, ESQ. Attorney for Plaintiff 188 Main StreetHornell, New York 14843BOLAND LEGAL, LLC Attorneys for Plaintiff DEAN M. BOLAND, of Counsel18123 Sloane AvenueLakewood, Ohio 44107GIBSON, DUNN & CRUTCHER LLP Attorneys for DefendantsORIN S. SNYDER, and ALEXANDER H. SOUTHWELL, of Counsel200 Park Avenue47 Floo
New York, New York 10166-0193andTHOMAS H. DUPREE, JR., of Counsel1050 Connecticut Avenue, N.W.Washington, District of Columbia 20036HARRIS BEACH LLP Attorneys for DefendantsTERRANCE P. FLYNN, of CounselLarkin at Exchange726 Exchange StreetSuite 1000Buffalo, New York 14210
Case 1:10-cv-00569-RJA -LGF Document 478 Filed 08/15/12 Page 1 of 9
This case, referred to the undersigned be Honorable Richard J. Arcara on May27, 2011, for all pretrial matters, is presently before the court on Defendants’ SeventhMotion to Compel (Doc. No. 461), filed July 11, 2012 (“Defendant’s motion”).Defendants specifically seek a court order directing Plaintiff to produce a letter referredto as the “Kasowitz letter,” from the New York law firm of Kasowitz, Benson, Torres &Friedman LLP (“Kasowitz”) to DLA Piper LLP (“DLA Piper”) and Lippes Mathias Wexler Friedman LLP (“Lippes Mathias”), all law firms that formerly represented Plaintiff in thisaction, in which Kasowitz advises DLA Piper and Lippes Mathias it is withdrawing fromthe case based on a determination that the purported contract at issue is a fraud.Defendants’ Memorandum of Law in Support of Their Seventh Motion to Compel andfor Other Relief (Doc. No. 461) (“Defendants’ Memorandum”), at 1. Defendants alsorequest the court impose sanctions against Plaintiff and his attorneys for failing toproduce the Kasowitz letter. Defendants’ Memorandum at 4. Defendants maintain theyonly learned about the Kasowitz letter after the court rejected Plaintiff’s attempt toconceal it by failing to include the Kasowitz letter in the August 29, 2011 Privilege Log(“the Privilege Log”), on which were listed ten items that became the subject of Defendants’ Fifth Motion to Compel (Doc. No. 294). Defendants’ Memorandum at 1-2. After reviewing the ten Privilege Log items
in camera
, the undersigned, in a Decisionand Order filed April 19, 2012 D&O (Doc. No. 357) (“April 19, 2012 D&O”), directedPlaintiff to produce,
inter alia
, Privilege Log Item 379 because any privilege that mayhave attached to Item 379 was waived by Plaintiff’s disclosure of its contents to oneJason Holmberg (“Holmberg”), who is not an attorney, and whose need to know the
Case 1:10-cv-00569-RJA -LGF Document 478 Filed 08/15/12 Page 2 of 9
information contained within Item 379 was not established. It was only after Plaintiff produced Item 379 that Defendants learned the Kasowitz letter had been attached butnot also produced. Defendants’ Memorandum at 2. Accordingly, Defendants filed their Sixth Motion to Compel (Doc. No. 381) seeking an order compelling Plaintiff to producethe Kasowitz letter. In a Decision and Order filed June 28, 2012 (Doc. No. 457) (“June28, 2012 D&O”), the undersigned ordered Plaintiff to produce the Kasowitz letter withinten days,
, by July 9, 2012, on the basis that the contents of the Kasowitz letter hadbeen revealed to Holmberg, without first establishing Holmberg had any need to knowthe information contained therein, and that Plaintiff, by failing to disclose the existenceof the Kasowitz letter by including such letter on Plaintiff’s Privilege Log, had waivedany privilege that otherwise could have attached to it. June 28, 2012 D&O at 43.Plaintiff did not appeal the June 28, 2012 D&O. As Boland represented to Defendantsand the court that all documents included in Item 379 had been produced, the courtspecified that Boland file with Plaintiff’s response a copy of the document Plaintiff claimed had to have actually produced to Defendants. July 11, 2012 Text Order (Doc.No. 464). Plaintiff, however, continues to refuse to produce the Kasowitz letter.In opposition to Defendants’ motion, Plaintiff, on July 20, 212, filed a Responseto Seventh Motion to Compel Regarding So-Called Kasowitz Letter (Doc. No. 466)(“Plaintiff’s Response”), submitting the Kasowitz letter for 
in camera
review. Despite
two court orders, including the April 19, 2012 D&O and the June 28, 2012 D&O,specifically calling for Plaintiff to produce the Kasowitz letter to Defendants, Plaintiff 
An unredacted copy of Plaintiff’s Response was separately submitted to the court.
Case 1:10-cv-00569-RJA -LGF Document 478 Filed 08/15/12 Page 3 of 9

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