BAT LLC, Plaintiff, v. TD BANK, N.A. et al., Defendants 15 CV 5839 (RRM) (CLP) United States District Court, E.D. New York Signed January 15, 2019 Counsel Robert L. Rimberg, Goldberg & Rimberg PLLC, New York, NY, Joseph Zelmanovitz, Stahl & Zelmanovitz, New York, NY, Kelly Christine Griffin-Fromm, Goldberg Weg & Markus PLLC, New York, NY, Elliot Hahn, Hahn Eisenberger PLLC, Brooklyn, NY, Seth Eisenberger, Law Office of Seth Eisenberger, Brooklyn, NY, for Plaintiff. Andrew Hamelsky, Stradley Ronon Stevens & Young, LLP, New York, NY, Jenifer Ann Scarcella, White & Williams LLP, New York, NY, for Defendant TD Bank N.A. Huaou Yan, Philadelphia, PA, Michael David Silberfarb, Blank Rome, New York, NY, for Defendant Halifax Security, Inc. Patrick Stoltz, Kaufman Borgeest & Ryan LLP, Valhalla, NY, for Defendant Securecom Wireless LLC. Katie Anne Mabanta, Deborah A. Del Sordo, Ahmuty, Demers & McManus Esq., New York, NY, for Defendant Lydia Security Monitoring Inc. James D. Gassenheimer, Pro Hac Vice, Berger Singerman LLP, Miami, FL, Michel O. Weisz, Pro Hac Vice, Michel O. Weisz, P.A., Doral, FL, Deborah A. Del Sordo, Ahmuty, Demers & McManus Esq., New York, NY, for Defendant Integrated Security Systems. Pollak, Cheryl L., United States Magistrate Judge ORDER *1 This action was commenced on August 3, 2015, by plaintiff BAT LLC (“BAT”) against defendants TD Bank, N.A. (“TD Bank”) and ADT LLC (“ADT”),[1] alleging claims stemming from a burglary and theft from a safety deposit box located at 1602 Avenue U, Brooklyn, New York (the “Avenue U branch”). Currently before this Court is the plaintiff's motion to compel responses to certain discovery requests. On July 30, 2018, this Court entered an Order granting in part and denying in part BAT's prior motion to compel responses from TD Bank.[2] The current motion relates to certain reformulated requests that the parties have been unable to resolve despite a meet and confer. Each of the requests is addressed below. A. Requests 1, 2 and 15 In its letter dated January 4, 2019, BAT seeks responses to its Requests 1, 2, and 15 which seek the following information: No. 1 seeks “all documents TD relied on in formulating its instructions to third-party monitoring companies;” No. 2 seeks “all documents, analyses or studies that TD conducted and which were used by TD in formulating its instructions for monitoring services;” and No. 15 seeks documents pertaining to TD's Ninth Affirmative Defense that it acted in accordance with all applicable laws, rules and regulations. (Pl.’s Ltr. at 3).[3] Plaintiff argues that TD Bank has not provided “any” documents of “numerous communications outages” upon which TD Bank claims it based its decision to implement the instructions to the monitoring services. (Id. at 4). Plaintiff contends that even if this information relates to other branches, TD Bank should be compelled to produce the documents. (Id.) In response, TD Bank asserts that there have been countless hours of depositions and extensive document production relating to TD Bank's security protocols and alarm system and that plaintiff's demand is simply seeking “redundant and irrelevant documents.” (Def.’s Ltr. at 1-2).[4] Defendant contends that plaintiff has not revised its requests; they are still overbroad and violate the Court's earlier Order in that they still fail to identify with specificity what they are looking for. (Id.) To the extent that TD Bank is arguing that Requests 1 and 2 are still overbroad, the Court disagrees and directs defendants to: 1) identify any studies or analyses that TD Bank conducted and relied on in formulating its instructions regarding monitoring services at TD Bank's Avenue U Branch between June 1, 2011 and September 1, 2012; 2) indicate that all such responsive documents were previously produced and provide Bates Nos.; or 3) indicate that no such documents exist. As for the request that TD Bank produce all underlying documents, even those relating to other TD Bank branches, that TD Bank may have consulted, considered or relied on in establishing its 2 Hour Alarm Delay and TD Bank's Instructions, the Court previously held that only documents relating to the Avenue U Branch need be disclosed; defendant is to verify that all such responsive documents have been provided. (Order[5] at 7). *2 Finally, as for Request 15, all documents pertaining to the Bank's affirmative defense, TD Bank shall verify that all responsive documents have been provided and ensure that any documents that will be relied upon by experts have been produced. B. Requests 6. 7. and 8 Request 6 seeks the TD Bank Security Officer's report, and Request 7 seeks all documents concerning this report, including documents used to create it. (Pl.’s Ltr. at 4-5). Request 8 seeks all minutes of the TD Bank Board of Directors relating to this report. (Id.) Defendant responds that there is “no file specifically labeled 12 CFR 21.3 or ‘Security Officer's Report,’ ” and thus no such documents exist. (Def.’s Ltr. at 3). Defendant further indicates that the internal TD Bank report of the burglary has been produced, and numerous witnesses deposed. (Id.) In the Court's prior Order, defendant was directed to provide the name of the Security Officer to the extent there was one. (Order at 8-9). It appears from defendant's submission that the identity of the Security Officer was in fact provided (Def.’s Ltr. at 3), but it is unclear whether he or she was deposed and whether all reports prepared by this individual, regardless of their title or designation, have been provided. Defendant is Ordered to clarify whether there are any other reports that were prepared as part of the Bank's legal obligations under the CFR; and whether the Security Officer was deposed. Presumably, he or she was asked if he or she prepared any reports. With respect to the Board of Directors’ reports and minutes, the Court's July Order denied plaintiff's request for these documents because the request was not limited in time or in topic. (Order at 9). Now the plaintiff seeks to reopen this issue by seeking all Board minutes relating to the security system, false alarms, and the decision not to install cellular backup. The Court declines to revisit its earlier ruling denying this request. As part of the motion to compel additional responses to these requests, plaintiff also argues that it has only been provided with a 12-minute video recording taken during the burglary, when numerous witnesses have indicated that there are multiple cameras that should have recorded video from 8:45 p.m. to 4:04 a.m. (Pl.’s Ltr. at 5). Defendant responds by noting that the burglars entered the bank through the vault and did not enter any other area of the bank. (Def.’s Ltr. at 4). According to defendant, the police collected the video footage, determined that the hours of footage of an empty bank were irrelevant and this remaining footage was “discarded at the direction of the NYPD.” (Id.) Under these circumstances, defendant is Ordered to respond to plaintiff's request by indicating that all relevant video footage in the possession, custody, and control of TD Bank has been provided. C. Requests 16. 17. and 18 Plaintiff seeks to compel responses to Requests 16, 17, and 18 relating to the Bank's Affirmative Defenses. (Pl.’s Ltr. at 6). Request 16 relates to the Thirteenth Affirmative Defense that any damages sustained by plaintiff were “the result of BAT's assumption of risk ...;” Request 17 relates to the Fifteenth Affirmative Defense that any damages were the “result of BAT's own culpable conduct;” and Request 18 relates to the Seventeenth Affirmative Defense that any damages were “due to the actions and/or inactions of persons or entities over whom TD Bank had no control.” (Id. at 6-7). *3 The Bank responds by indicating that it referred plaintiff to documents already provided and also provided an additional 558 documents. (Def.’s Ltr. at 4-5). Defendant is directed to confirm that all responsive documents, with the exception of expert reports and expert discovery, have been produced. SO ORDERED. Footnotes [1] ADT was dismissed from the action on December 15, 2015. [2] The Court refers to its earlier Order describing the factual and procedural background of the case and the plaintiff's asserted need for some of the discovery. [3] Citations to “Pl.’s Ltr.” refer to plaintiff's letter, dated January 4, 2019, ECF No. 153. [4] Citations to “Def.’s Ltr.” refer to defendant's letter, dated January 11, 2019, ECF No. 154. [5] Citations to “Order” refer to this Court's Order dated July 30, 2018, ECF No. 139.