[*1]
Wojcik Law Firm, P.C. v Mull
2021 NY Slip Op 50384(U) [71 Misc 3d 1215(A)]
Decided on May 3, 2021
Supreme Court, New York County
Lebovits, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 3, 2021
Supreme Court, New York County


Wojcik Law Firm, P.C., Plaintiff,

against

Andrew Mull, Defendant.




650071/2019



Katz Melinger PLLC, New York, NY (Adam Sackowitz of counsel), for plaintiff.



Meyer, Suozzi, English & Klein, P.C., Garden City, NY (Michael J. Antongiovanni of counsel), for defendant.


Gerald Lebovits, J.

In this action for unpaid legal fees, this court previously decided the parties' respective motion and cross-motion for summary judgment and related relief. In that order, entered December 3, 2020, this court granted defendant's cross-motion only to the extent of "compelling plaintiff to produce documents and appear for deposition." (NYSCEF No. 54.) This court's order on defendant's ensuing motion for reargument, entered March 23, 2021, adhered to that aspect of the December 3 order. (See NYSCEF No. 76 at 1-2.) This court also directed the parties to meet and confer regarding the timing of the document production and deposition directed by the December 3 order, and to appear for a telephonic status conference in April 2021 on that issue. (See id. at 2.)

The parties have since disagreed materially about the appropriate scope of production required of plaintiff under this court's orders. On this court's request, the parties submitted letter briefing about their dispute (see NYSCEF Nos. 77-78), and also engaged in further email correspondence with the court to clarify the scope of their remaining disagreements. This order sets out the court's resolution of those disagreements.

DISCUSSION

As an initial matter, this court does not agree with defendant's contention that this court's prior orders required plaintiff necessarily to provide all responsive documents, regardless of any reasonable objection that plaintiff might raise to the nature or scope of particular requests. And as discussed in more detail below, this court does not necessarily agree with all of plaintiff's [*2]asserted objections; but the court views those objections as being reasonable and made in good faith, and has dealt with them accordingly.

I. The Parties' Global Dispute About the Relevance of Mr. Wojcik's Employment as General Counsel to Defendant's Companies

This court deals first with a global issue running through many of the parties' discovery-related disagreements. The parties differ over whether documents that relate in some fashion to Mr. Wojcik's legal representation of defendant's companies (A.M., Waddle, and Lakeview) as their general counsel are relevant and discoverable to the claims and defenses in this action. Plaintiff takes the view that because it is not seeking legal fees from defendant relating to that representation, such documents cannot be relevant (and thus discoverable) here. To that extent, this court disagrees.

1. One of defendant's defenses in this case is that the various agreements between plaintiff and defendant on which plaintiff's claims are based were (assertedly) obtained through pressure, undue influence, and overreaching on the part of plaintiff. Defendant claims that Mr. Wojcik's employment as general counsel for defendant's companies is an example of such overreaching; therefore, defendant contends, that employment relationship is relevant to the defenses in this action even if plaintiff does not directly base its claims on fees incurred by defendant for Mr. Wojcik's work as as general counsel.

This court agrees that given this argument by defendant, the employment relationship between Mr. Wojcik on the one hand, and A.M., Waddle, and Lakeview, on the other—and documents relating to Mr. Wojcik's employment as general counsel—is potentially relevant and gives rise to discoverable information. The court's conclusion on this point does not mean that any particular request seeking documents generated in the course of that employment relationship is necessarily proper and must be responded to. But it does mean that such requests are not categorically improper, as plaintiffs would have it.

2. Additionally, the salary earned by Mr. Wojcik as general counsel is potentially relevant to the amount of defendant's outstanding legal-fee balance. The June 28, 2017, supplemental fee agreement between plaintiff and defendant's companies states that half of Mr. Wojcik's salary as general counsel will be credited to the outstanding balance that defendant's companies owe to plaintiff for legal services rendered. As plaintiff points out, though, this term of the agreement has an important proviso: "if the Companies prevail on their claims at their August 2017 arbitration hearing before the Hon. Eli Chernow," that increment of Mr. Wojcik's salary "shall not be so credited as the same will be paid out of any arbitration award (or any settlement arrangement made in lieu of such an award)." (NYSCEF No. 27 at 1.)

It is undisputed that the companies prevailed in the 2017 arbitration—and also that the arbitrator denied legal fees incurred by plaintiff in matters relating to the arbitration. Plaintiff argues that in this scenario, the June 28 fee agreement unambiguously did not permit any part of Mr. Wojcik's salary as general counsel to be credited toward the outstanding legal-fee balance. This court disagrees: as this court sees it, there are least two reasonable readings of the proviso to the agreement's salary-credit term.

First, this proviso could be read to indicate that if defendant's companies were to prevail and obtain an arbitral award, that award would bring in sufficient funds that the companies could pay their outstanding legal-fee balance without need of a credit from half of Mr. Wojcik's general-counsel salary. On this reading of the proviso, that the arbitral award ultimately turned out not to contain a separate increment for the fees earned by plaintiff is irrelevant; all that [*3]matters is that defendant's companies prevailed and obtained a sizable award.

Second, the proviso could be read as based on the assumption that if defendant's companies were to prevail and win an award, one increment of that award would be plaintiff's fees earned in the Trumpette dispute, which would then be applied directly to the outstanding legal-fee balance. On this reading, the arbitrator's denial of fees for services rendered by plaintiff disproved the assumption at the heart of the proviso; and this failure of the proviso's express stated rationale trumps the fact that the companies prevailed and obtained an award.

This court cannot, on the record before it, resolve the ambiguity between these two interpretations of the salary-credit proviso. Mr. Wojcik's salary earned as general counsel thus remains at least potentially relevant the size of the legal-fee balance that plaintiff is entitled to claim in the first place (before one reaches defendant's undue-influence/overreaching defenses). Plaintiff thus must produce sufficient documentation to enable defendant to ascertain how much defendant's companies (and defendant himself) paid Mr. Wojcik for his work as general counsel.

The extent to which the court's conclusions with respect to Mr. Wojcik's employment as general counsel affect particular discovery disagreements between the parties will be discussed further below.



II. The Parties' Disagreements About Particular Discovery Requests by Defendant



Request No. 2: These documents should presumably be in the possession of defendant or defendant's companies already, since they are the counterparties to the agreements being requested. This court does not see why plaintiff should have to produce these documents again. If defendant believes that there may be agreements that are responsive to this request that are not in his possession, custody, or control, he may serve a more specific supplemental request.



Request No. 5: Plaintiff has represented in counsel's letter of April 19 that it is willing to produce not only the employment agreement itself, but also "documents and communications concerning the drafting, negotiation, and execution" of the agreement predating its execution. (NYSCEF No. 78 at 2.) The court considers production of these documents to be fully responsive to Request No. 5.



Request No. 8: This request for production is denied as vague and overbroad—particularly given the scope of production regarding the employment agreement that plaintiff has already committed to make.



Request Nos. 9: Request denied to the extent objected to in plaintiff's counsel's email of April 30, 2021. With respect to Mr. Wojcik's representation of defendant's companies as general counsel, this broad request does not seek relevant information beyond that already covered by Request Nos. 10-12.



Request Nos. 10-12: This court disagrees with plaintiff's objection that these requests seek irrelevant information to the extent they apply to Mr. Wojcik's representation of defendant's companies. As this court understands it, defendant is arguing (among other things) that the companies agreed to Mr. Wojcik's salaried employment as general counsel under pressure from plaintiff, rather than because they thought he would be providing them useful legal services. Mr. Wojcik's documentation of the work he was doing for the companies as general counsel—and the extent to which such work was documented in the form of invoices, billing records, time sheets, and the like—is thus relevant to defendant's claim that, in essence, they were forced to pay Mr. Wojcik for a no-show job. Plaintiff must respond to these requests in full.



Request Nos. 13-14: As framed (and objected to by plaintiff in counsel's April 30 email), these [*4]requests are overbroad. For the reasons discussed above with respect to the salary-credit provision of Mr. Wojcik's employment agreement, plaintiff must provide documents sufficient to identify clearly the amounts paid by defendant or A.M., Waddle, and Lakeview to Mr. Wojcik pursuant to the agreement. But plaintiff need not provide the underlying checks, wires, credit card authorizations, and the like.



Request Nos. 15-16: As framed (and objected to by plaintiff in counsel's April 30 email), these requests are overbroad given plaintiff's production obligation under Request Nos. 10-12.



Request No. 17: This court disagrees with plaintiff's objection (as expressed in counsel's April 30 email) to this request, for the reasons stated above with respect to Request Nos. 10-12. Plaintiff must respond to this request in full.



Request Nos. 18-19: These requests are denied as overbroad to the extent objected to in plaintiff's counsel's email of April 30, 2021—particularly given plaintiff's production obligations with respect to Request Nos. 10-14. To the extent that defendant believes after reviewing plaintiff's production in response to this document demand that further information on the topics covered by this request is relevant and necessary to his defenses to the action, he may serve a specific, targeted supplemental request.



Request No. 20: Request denied to the extent objected to in plaintiff's counsel's email of April 30, 2021, for the reasons stated above with respect to Request No. 9.



Request No. 24: This request is denied as overbroad, particularly given plaintiff's production obligation under Request No. 5.



Request No. 25: This request is denied as overbroad and duplicative in any event of Request Nos. 10-12 and 18-19.



Request No. 26: This request seeks potentially relevant information about the nature of Mr. Wojcik's employment relationship with defendant's companies as general counsel. But the request, as currently framed, is vague and overbroad; and this court declines to prune the request itself into a more manageable form. This denial is therefore without prejudice to defendant serving a narrower, more precise version of the request.



Request No. 27: Request denied to the extent objected to in plaintiff's counsel's email of April 30, 2021, as duplicative of Request No. 26 (and, as objected to, overbroad for the same reasons as Request No. 26).



Request No. 30: Request denied to the extent objected to in plaintiff's counsel's email of April 30, 2021.



Request Nos. 31-34:



31 (c), 32 (c), 33 (c), and 34 (c) are denied. These requests are largely duplicative of the production obligation that plaintiff has already assumed as discussed above with respect to Request No. 5. To the extent that these requests go beyond that production, defendant has not established that they would lead to the discovery of relevant information.



31 (f)-(h), 32 (e)-(g), 33 (e)-(g), and 34 (f)-(h) are denied to the extent objected to in plaintiff's counsel's April 30 email. Defendant has not shown how these documents are relevant to the salary-credit issue discussed above.



31 (i)-(j), 32 (h)-(i), 33 (h)-(i), and 34 (i)-(j) are denied to the extent objected to in plaintiff's counsel's April 30 email. These requests are overbroad relative to the aspects of Mr. Wojcik's employment as general counsel discussed above that might be relevant to the claims and defenses in this action. This court declines to prune the request into more manageable form. This denial is without prejudice to defendant serving a narrower, more precise version of the request.



31 (l), 32 (j)-(k), 33 (j)-(k), and 34 (k)-(l) are granted over the objection of plaintiff as expressed in counsel's April 30 and May 3 emails. These requests are more narrowly framed than seeking communications about Mr. Wojcik's employment by defendant's companies in general; and they also seek potentially relevant information about the nature of Mr. Wojcik's employment relationship with those companies. In particular, the requested communications bear on and whether the companies terminated Mr. Wojcik's employment as general counsel because of its cost, because they did not like the quality of Mr. Wojcik's work, or because they felt able to stop paying him for work he was not, in fact, doing (as defendants appear to be suggesting). Plaintiff must fully respond to these requests.



31 (m)-(o), 32 (l)-(m), 33 (l)-(m), and 34 (m)-(o) are denied to the extent objected to in plaintiff's counsel's April 30 email. Defendant has not shown how these documents would shed light on the aspects of Mr. Wojcik's employment as general counsel discussed above that might be relevant to the claims and defenses in this action.



34 (e) is denied to the extent objected to in plaintiff's counsel's April 30 email. This request is overbroad relative to the aspects of Mr. Wojcik's employment as general counsel discussed above that might be relevant to the claims and defenses in this action. This court declines to prune the request into more manageable form. This denial is without prejudice to defendant serving a narrower, more precise version of the request.

Accordingly, for the foregoing reasons, it is hereby

ORDERED that plaintiff shall provide supplemental document responses, to the extent directed above, within 45 days; and it is further

ORDERED that defendant may, if he so chooses, serve revised, supplemental document requests to the extent permitted above, within 15 days; and it is further

ORDERED that plaintiff shall respond to any supplemental requests served by defendant at the same time that it provides its supplemental responses to defendant's existing requests.



DATE: 5/3/2021