2138747 Ontario Inc. v. Lehman Bros. Holdings, Inc.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 431, 432, 433, 434, 435, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449 were read on this motion to/for ENFORCEMENT. DECISION + ORDER ON MOTION Upon the foregoing documents, it is On August 16, 2023, plaintiff filed a note of issue and certificate of readiness. In motion sequence number 008, defendant Lehman Brothers Holdings Inc. (LBHI) moves to compel plaintiff 2138747 Ontario Inc. (Ontario) to produce a complete privilege log that complies with CPLR 3122 (b); collect and produce responsive nonprivileged documents from Kerry Adler, Ontario’s President and Director, and log the purportedly privileged ones, and produce all nonprivileged documents regarding the assignment at issue including documents over which Ontario has waived attorney-client privilege. LBHI also seeks to preclude Ontario from relying on the testimony of its counsel, Ellen Werther, Esq. or Bruce Ressler, Esq., related to topics on which Werther and Ressler refused to testify pursuant to the subpoenas duces tecum and ad testificandum served on them on March 7, 2023 (Subpoenas). Ontario cross-moves to quash the Subpoenas pursuant to CPLR 3103 (a) and to sanction LBHI and its counsel under 22 NYCRR 130-1.1 for frivolous conduct. Background and Procedural History The court’s prior decision on motion sequence numbers 002, 003 and 004, provides a detailed background of the dispute, which will be supplemented as necessary for this motion.¹ (NYSCEF Doc. No. [NYSCEF] 190, Decision and Order [mot. seq. nos. 002, 003, 004].) LBHI served its first request for production of documents upon Ontario on September 15, 2020 (First Production Request). (NYSCEF 215, Defendant’s First Request for Production of Documents [September 15, 2020].) Ontario objected to LBHI’s document requests and characterized them as vague, ambiguous, overly broad, unduly burdensome and seeking documents and information containing privileged communications, attorney-work product and trial preparation material. (NYSCEF 354, Ontario Responses to LBHI First Document Requests [October 14, 2020].) Subject to its general objections, Ontario agreed to produce nonprivileged documents responsive to 6 of the total 21 document requests. (Id.) On April 5, 2021, Ontario produced 61 documents in response to LBHI’s First Production Request. (NYSCEF 352, Lee aff

6-7 [May 26, 2023].) According to LBHI, a number of these documents were missing attachments, 20 of the 61 documents produced by Ontario were duplicate documents, and none of the documents contained communications that pre-dated the assignment agreement at issue or any communication with Goodmans, the Canadian law firm that advised Ontario on the assignment transaction. (Id.