Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 1 of 7
`
`ALEXANDRA CANOSA,
`
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------:
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`X
`----------------------------------------------------------------------
`
`
`
`-v-
`
`
`HARVEY WEINSTEIN, THE WEINSTEIN
`COMPANY HOLDINGS, LLC, and THE WEINSTEIN
`COMPANY, LLC,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`18 Civ. 4115 (PAE)
`
`ORDER
`
`
`PAUL A. ENGELMAYER, District Judge:
`
`The Court has reviewed plaintiff Alexandra Canosa’s letter, Dkt. 181; defendant Harvey
`
`Weinstein’s letters, Dkts. 180, 185; and a letter from defendants the Weinstein Company
`
`Holdings, LLC, and the Weinstein Company, LLC (together, “TWC”), Dkt. 184. These letters
`
`concern alleged failures of all parties to comply with their discovery obligations.
`
`The parties have not made conscientious use of the period allotted for document
`
`discovery. Nor have they brought their discovery disputes to the Court’s attention in a timely
`
`fashion. Document discovery began on May 9, 2019, when the Court approved the parties’ case
`
`management plan, and was set to end on November 6, 2019. See Dkt. 167. Despite the six
`
`months of discovery, the parties have produced little. The Court was first made aware of any
`
`discovery issues on November 1, 2019, five days before the close of document discovery, when
`
`Weinstein filed his first letter. Dkt. 180 (“Weinstein Letter”). To Weinstein’s credit, his counsel
`
`did serve Canosa with a deficiency letter on October 12, 2019 and requested to meet and confer
`
`with her counsel. Id. at 1–2. The Court is dismayed by Canosa’s lack of response to this
`
`
`
`
`
`

`

`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 2 of 7
`
`October 12, 2019 letter and the failure of her counsel to file any deficiency letter with the Court
`
`until the night of November 6, 2019, the final night of document discovery. Dkt. 181 (“Canosa
`
`Letter”). Counsel thereby endangered his client’s ability to seek potentially important document
`
`discovery. The Court expects counsel, in the future, to aspire to a substantially higher standard
`
`of representation.
`
`With some hesitation, however, the Court will not preclude either party from pursuing
`
`document discovery. The Court will thus overlook the untimeliness of counsels’ letters for two
`
`reasons: (1) deposition discovery is apt to be delayed, on account of defendant Weinstein’s
`
`upcoming criminal trial, and therefore a brief extension of time to complete document discovery
`
`will not delay this case; and (2) the interests of justice, and of the parties, favor a resolution of
`
`this important controversy on the merits, not based on counsels’ missteps. The parties will have
`
`until December 11, 2019 to complete document discovery. All documents, or corresponding
`
`privilege logs, must be produced by November 27, 2019. The remaining two weeks will allow
`
`the parties time to resolve any outstanding issues. These deadlines will not be further extended.
`
`The Court expects counsel, acting collegially and in good faith as professionals, to resolve any
`
`issues without the need to seek judicial intervention. Counsel are advised that failure to comply
`
`with these deadlines may result in the imposition of sanctions and potential preclusion of the use
`
`of evidence at trial.
`
`As to the current outstanding discovery disputes, the Court rules as follows:
`
`Canosa Production:
`
`1.
`
`Weinstein alleges that Canosa has not produced discovery related to computation
`
`of damages. Weinstein Letter at 1. Canosa responds she is seeking damages for pain and
`
`suffering, which are intangible. Canosa Letter at 3. The Court rules for Weinstein. Even though
`
`
`
`2
`
`

`

`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 3 of 7
`
`Canosa is seeking damages for pain and suffering, she is still obligated to produce documents
`
`reflecting computation of damages.
`
`2.
`
`Weinstein alleges that Canosa has not produced discovery related to her
`
`mitigation of damages for lost wages. Weinstein Letter at 1. Canosa argues that she cannot
`
`meaningfully respond to this request until she knows whether Weinstein talked with third parties
`
`about her employability. Canosa Letter at 3. The Court rules for Weinstein. Although Canosa
`
`has requested documents that mention her name or concern her, see Dkt. 181-1 ¶¶ 18–19, it does
`
`not appear that Canosa has specifically requested these employment-related communications
`
`with third parties from Weinstein. Regardless, even if she had, Canosa must still produce
`
`documents related to the mitigation of damages for lost wages, including documents related to
`
`her employment history and attempts to seek alternate employment.
`
`3.
`
`Weinstein alleges that Canosa has not produced discovery related to collateral
`
`offsets. Weinstein Letter at 1. Canosa responds that she has no collateral offsets for her mental
`
`health treatment. Canosa Letter at 3. The Court rules for Weinstein. While she may have no
`
`offsets related to mental health treatment, Canosa must still produce documents related to any
`
`other potential collateral offsets, such as unemployment benefits or worker’s compensation
`
`benefits.
`
`4.
`
`Weinstein alleges that Canosa has not produced sufficient medical record
`
`discovery relating to her alleged emotional, psychological, and physical injuries. Weinstein
`
`Letter at 1. Canosa responds that, given HIPAA and therapist-patient privileges, she is not
`
`obligated to produce psychotherapy notes. Canosa Letter at 3–4. The Court rules for Weinstein.
`
`First, HIPAA does not prevent disclosure of medical records in response to a court order, or, if
`
`there is assurance that the patient has been put on notice of the request or a protective order has
`
`
`
`3
`
`

`

`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 4 of 7
`
`been sought, in response to a discovery request or subpoena. 45 C.F.R. § 164.512(e)(1)(i)–(ii);
`
`see also Nat’l Abortion Federation v. Ashcroft, No. 03 Civ. 8695 (RCC), 2004 WL 555701, at *2
`
`(Mar. 19, 2004 S.D.N.Y. 2004). Second, if Canosa wishes to assert a privilege, she must
`
`produce a detailed, item-by-item privilege log in lieu of production, so as to enable opposing
`
`counsel and the Court to assess the viability of any claim of privilege. Third, Weinstein has
`
`requested a category of documents that is broader than psychotherapist notes; Weinstein seeks
`
`other medical records and reports. These are properly sought given the claims and damages that
`
`Canosa pursues. As a result, the Court orders Canosa to produce the medical records and
`
`HIPAA authorizations requested by Weinstein or, for specific privileged documents, a privilege
`
`log. As with all document discovery within the scope of the parties’ protective order, if these
`
`contain sensitive information, the parties are at liberty to designate them as confidential or
`
`attorneys’-eyes-only.
`
`5.
`
`The above categories of documents relate to damages. Having broadly reviewed
`
`the documents referenced in Weinstein’s deficiency letter, see Dkt. 180-1, the Court also orders
`
`Canosa to produce documents that Weinstein requests related to the issue of liability, such as
`
`social media posts and text messages. See id. at 3.
`
`6.
`
`Weinstein states that he intends to subpoena non-parties, including Ryan Judd,
`
`Frank Canosa, and Ariel Heller. Weinstein Letter at 1; Dkt. 180-1 at 1. Canosa objects, at least,
`
`to subpoenas of Frank Canosa and Heller. Canosa Letter at 4. To the extent Weinstein intended
`
`to subpoena these non-parties for documents, his requests are untimely. He failed to issue any
`
`subpoenas of non-parties before the initial close of document discovery on November 6, 2019.
`
`As a result, such non-parties would not realistically have sufficient time to respond to any
`
`document requests by the new deadline of November 27, 2019. As to that issue, the Court rules
`
`
`
`4
`
`

`

`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 5 of 7
`
`for Canosa. However, to the extent Weinstein intends to subpoena these non-parties for
`
`depositions, the Court will take up that issue later, once a schedule for deposition discovery has
`
`been set.
`
`Weinstein Production:
`
`1.
`
`Weinstein asserts a claim of privilege to each of Canosa’s July 26, 2019 requests
`
`for production. See Dkt. 181-2 at 4–14. This broad claim is not tenable as made. To the extent
`
`Weinstein intends to assert such privileges, he must produce a detailed, item-by-item privilege
`
`log that enables opposing counsel and the Court to assess the claim of privilege. If he fails to
`
`provide such a log, the Court will order him to produce the documents requested.
`
`2.
`
`Weinstein also asserts a broad relevance objection to each of Canosa’s July 26,
`
`2019 requests for production. See id. Such a sweeping objection is wholly unpersuasive. The
`
`Court therefore rules for Canosa. To the extent Weinstein possesses the documents at issue, he
`
`must produce them or provide a more tailored relevance objection. Many of Canosa’s requests
`
`are undoubtedly relevant, such as her requests for Weinstein’s schedules, calendars, phone
`
`records, travel records, and hotel receipts. See id. at 7–9. These types of documents have the
`
`obvious potential to lead to relevant, admissible evidence concerning Weinstein’s potential
`
`liability for the alleged assaults.
`
`3.
`
`Canosa specifically requests Lauren O’Connor’s November 3, 2015
`
`memorandum. Canosa Letter at 2. Weinstein argues that Canosa has failed to provide details
`
`related to the memorandum and that he “is unable to respond to such a vague request.”
`
`Weinstein Letter at 3. He also argues that Canosa has not explained why the memorandum is
`
`relevant. Id. The Court rules for Canosa. Weinstein must produce this memorandum. It is
`
`obvious what memorandum Canosa is referring to, as she has provided a date and a link to a
`
`
`
`5
`
`

`

`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 6 of 7
`
`news story that describes the memorandum. See Canosa Letter at 2 & n.1. The memorandum,
`
`which is reported to concern alleged conduct of Weinstein similar to that which Canosa
`
`complains of here, is clearly relevant. Even if the memorandum itself is not admissible, it has
`
`the potential to lead to relevant, admissible evidence.
`
`4.
`
`Canosa also requests documents related to insurance policies. Canosa Letter at 2.
`
`Weinstein has agreed to produce these documents. Dkt. 185 (“Weinstein Reply”) at 3. For
`
`avoidance of doubt, the Court orders Weinstein to produce these insurance documents.
`
`5.
`
`Canosa served Weinstein with a second round of requests for production of
`
`documents on October 8, 2019. Canosa Letter at 2. Weinstein has yet to produce any response
`
`to these requests. The Court orders Weinstein to respond.
`
`TWC Production:
`
`1.
`
`TWC has not produced a response to either round of Canosa’s requests for
`
`production. See Canosa Letter at 2. The Court orders TWC to respond to these requests.
`
`2.
`
`Canosa complains that she has not been granted access to the TWC document
`
`database. Canosa Letter at 1. TWC must produce the requested documents that are located in
`
`the database. To the extent that Weinstein asserts claims of privilege related to the documents,
`
`he must first review the documents and produce a corresponding privilege log. If TWC and
`
`Weinstein fail to produce the documents and / or privilege log by November 27, 2019, the Court
`
`will consider granting Canosa access to the database.
`
`Weinstein’s Request for a Stay:
`
`1.
`
`Weinstein has requested a stay of discovery from December 1, 2019 until April 1,
`
`2020. Weinstein Reply at 2. The Court denies the request, at least through December 11, 2019,
`
`the new deadline for the resolution of all document discovery issues. At that time, the Court will
`
`
`
`6
`
`

`

`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 7 of 7
`Case 1:18-cv-04115-PAE Document 186 Filed 11/14/19 Page 7 of 7
`
`consider a request to stay deposition discovery through the completion of Weinstein’s criminal
`
`trial.
`
`The Clerk of the Court is respectfully directed to terminate the motions pending at
`
`dockets 180 and 185.
`
`SO ORDERED.
`
`Dated: November 14, 2019
`New York, New York
`
` pwr Ayb)
`
`PAUL A, ENGE“M IR
`United States District Judge
`
`