FILED: NEW YORK COUNTY CLERK 04/21/2014 INDEX NO. 651472/2012 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/21/2014 Exhibit 4
HILLER, PC Attorneys at Law 600 Madison Avenue New York, New York 10022 (212) 319-4000 Direct email: adavis@hillerpe_com Facsimile: (212) 753-4530 Via E-mail and Regular Mail Eugene T. D'Ablemont, Esq. Kelley Drye & Warren, LLP 101 Park Avenue New York, New York 10178 Dear Eugene: Re: American Stevedoring, Inc. v. Red Hook Container Terminal, LLC Index No. 651472-2012 We have reviewed Windmill Distributing Company, L.P.'s ("Windmill") responses ("Responses") to American Stevedoring, Inc.'s ("American") First Set of Interrogatories ("Interrogatory" and "Interrogatories") and Document Demands ("Demand" and "Demands"). Unfortunately, Windmill's Responses are substantially inadequate in numerous respects. In an effort to avoid motion practice, we herewith furnish you with a written summary of our objections. We hope that we can resolve our objections amicably and in good faith. Wiindmill Interrogatory Responses Response to Interrogatory No 1 Windmill's objection that Interrogatory No. 1 is purportedly overbroad, because it "includes subparts which are not allowed in the Practices for Part 49, 10(b)" is a misconception. Rule 10(b) of the Commercial Division Rules provides that Interrogatories are limited in number to 25 without subparts, meaning that the quantity of interrogatories, not their format, is limited by Rule 10(b). Please identify all persons and/or witnesses with knowledge or information concerning Interrogatory No. 1 whose identity was withheld from Windmill's Response thereto. Response to Interrogatory No. I. (a) The only person Windmill identifies as having knowledge of Interrogatory 1(a) is Rodney
Eugene D'Ablemont page 2 Brayman, who Windmill contends "may have knowledge" relating to subsection (a) of Interrogatory No. 1. Please clarify whether Rodney Brayman has knowledge concerning Interrogatory No. 1(a). In further Response to this Interrogatory, Windmill objects on the grounds that Windmill's operations are not at the part of the terminal where Red Hook Container Terminal, LLC ("RHCT") is located. The scope of Interrogatory 1(a) is not limited to Windmill's operations "at the terminal where R[HCIC] is located." Indeed, Interrogatory No. 1(a) seeks the identity of all persons with knowledge of "Windmill's business operations, including, without limitation, day-to-day business operations at the Brooklyn Marine Terminal[.]" Consequently, Windmill's purported Response to this Interrogatory is nonresponsive. Please state whether the identity of any person was withheld on the basis of the foregoing, or any objection. Responses to Interrogatories Nos. 1(b)-(f) Windmill's Response to Interrogatories Nos. 1(b) through (f) -- that it has no knowledge of witnesses with personal knowledge contradicts, and is unreasonable in light of, Windmill's general objection to Interrogatory No.1, which reads, in pertinent part, as follows: "Windmill will respond with the identify [sic] of individuals with general knowledge, if any, and not witnesses to be called at trial." In accordance with Windmill's general objection, please identify all persons (as opposed to witnesses) with information or knowledge concerning Interrogatories 1(b)-(t). Response to Interrogatory No. 2 Interrogatory No. 2 directs Windmill to "[identify any and all Documents regarding Windmill's operations at the Brooklyn Marine Terminal." In Response, Windmill asserts a myriad of baseless objections, some of which directly contradict Windmill's Response thereto. For example, Windmill refuses to identify a single document responsive to Interrogatory No. 2 and, instead, claims that the term "operations" is vague and undefined. Respectfully, the term operations does not lack particularity. Rather, operations refers to Windmill's harvesting of value from assets owned, including, but not limited to, the following: assets located at the Brooklyn Marine Terminal and/or its presence at said terminal; the nature and extent of Windmill's business operations as the purported lessor of equipment to Red Hook Con airier Terminal, LLC ("RHCT") or otherwise; as well as its use of the Equipment its storage of any equipment at the Brooklyn Marine Terminal; and/or the extent of its purported losses to its equipment located at the terminal due to Hurricane Sandy. Please identify all documents responsive to this Interrogatory or confirm in writing that Windmill has no responsive documents in its possession, custody or control. To the extent that Windmill claims to have produced documents responsive to Interrogatory No. 2, please identify each of those documents by Bates number. Additionally, please advise whether Windmill refused to identify any documents responsive to this Interrogatory on the grounds of privilege by providing us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules
Eugene D'Ablemont Page 3 Additionally, Windmill's purported Response -- its operations are not at the part of the terminal where RHCT is located -- is nonresponsive on the separate ground that it falls to respond to Interrogatory No. 2 to the extent responsive documents concerning Beehive and Phoenix were not identified. Please identify all documents regarding Windmill's [Beehive's and Phoenix's) operations at the Brooklyn Marine Terminal. Please identify all documents responsive to this Interrogatory or confirm in writing that Windmill has no responsive documents in its possession, custody or control. To the extent that Windmill claims to have produced documents responsive to Interrogatory No. 2, please identify each of those documents by Bates number. Additionally, please advise whether Windmill refused to identify any documents responsive to this Interrogatory on the grounds of privilege by providing us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules. Response to Interrogatory No. 4 In Response to Interrogatory No. 4, Windmill asserts a number of baseless objections, none of which justify its refusal to identify persons with personal knowledge concerning the Lease. For example, Windmill's allegation that the phrase "personal knowledge of the Lease" has no specific meaning is absurd. This Interrogatory is clear -- Windmill must identify all persons with knowledge concerning the Lease. Additionally, Windmill's Response that it has "no corporate knowledge" of witnesses with personal knowledge relating to Interrogatory No. 4 is, at a minimum, unclear. Please state whether the person(s) answering these interrogatories has researched and can identify any person(s) with personal knowledge concerning the Lease. Please identify such persons. Windmill Responses to Document Demands General Objections Please advise whether Windmill withheld any documents on the basis of its general objections and specify which of Windmill's general objections is relied upon to withhold each of these documents. Objection to Definitions and Instruction No. 5 Windmill contends that the relevant time period for American's Demands is September 2011 to the date the Complaint was filed. As Windmill is aware, however, the relevant time period in this action is, in part, the period of time the Equipment has been in RHCT's possession, custody or control (i.e., September 2011 to date). Accordingly, please produce all documents responsive to
Eugene. D 'Ablemont page 4 American's Demands that were withheld on the basis that the relevant time period ended at on the day the Complaint was filed. Responses to Demand Nos. 5, 13, 22, and 60. In Response to each of these Demands, Windmill states that "subject to and without waiving the foregoing objections, Windmill will undertake a reasonable search and produce non-privileged documents responsive to this Demand, if any exist and can be located with reasonable effort." These Responses axe unacceptable, as the deadline for discovery was February 5, 2014. Please produce all documents responsive to this Demand forthwith or confirm in writing that Windmill has no responsive documents in its possession, custody or control. To the extent that Windmill claims to have produced documents responsive to this Request, please identify each of those documents by Bates number. Additionally, please advise whether Windmill withheld any responsive documents on the grounds of privilege by providing us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules. Response to Demand No. 14. In Response to Demand No. 14, Windmill admittedly withheld responsive documents on the basis of attorney-client privilege, the work product doctrine, common interest doctrine, or any other applicable privilege or protection from discovery. However, Windmill failed to produce a privilege log. Provide us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules for all documents Windmill withheld from its production on the foregoing bases. Further, Windmill's additional objections to Demand No. 14 as overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of documents and information material and necessary to the prosecution and/or defense of claims in this action are baseless. Response to Demand No. 38. Windmill's Response to Demand No. 38 states its purported objections to Demarvi 29. Please advise in writing whether Windmill's "Response to Document Demand No. 29[,]" on page 22 of its Response, was in fact its response to Demand No. 38. Response to Demand No. 41 Demand No. 41 calls for "[al Documents and Communications relating to losses sustained by each of the Defendants during Hurricane Sandy, including without limitation, any and all documents and communications relating to any contention that the various insured and/or payees overstated their losses." In Response, Windmill refused to produce a single document on the basis of alleged relevancy and overburdensome objections_ Respectfully, none of Windmill's objections are a proper basis upon which you may withhold responsive documents from production. Further,
Eugene D'Ablemont page 5 as Windmill is aware, this action involves, inter alia, issues concerning insurance coverage and payment for the Defendants' losses sustained during Hurricane Sandy. Consequently, documents and communications concerning losses sustained by each of the Defendants, including those sustained by Windmill, during Hurricane Sandy are relevant and. Please produce all documents and communications responsive to Demand No. 41 forthwith or confirm in writing that Windmill has no responsive documents and/or communications in its possession, custody or control. To the extent that Windmill claims to have produced documents responsive to this Request, please identify each of those documents by Bates number. Additionally, please advise whether Windmill withheld any responsive documents on the grounds of privilege by providing us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules_ Privileged Documents. Please advise whether Windmill withheld any responsive documents on grounds of privilege and provide us with a privilege log for all documents that were withheld. Document Production. Windmill's first production, which consists of a mere nine pages of documents, is devoid of documents and/or communications responsive to any of American's Demands. The deficiencies of Windmill's production are so vast that we will not respond to and/or outline each such deficiency. It suffices to say that Windmill must conduct a proper review of its business records, documents and information concerning this action as well as the allegations in the pleadings therein and produce all documents and communications responsive to American's Demands. We look forward to your response. yew trui _ CW c: All counsel of record (vis e-mail
HILLER, PC Attorneys at Law 600 Madison Avenue New York, New York 10022 (212) 319-4000 Direct email: adavis@hillerpc.com Facsimile: (212) 753-4530 Via E-mail and Regular Mail Eugene T. D'Ablemont, Esq. Kelley Drye & Warren, LLP 101 Park Avenue New York, New York 10178 Dear Eugene: Re: American Stevedoring, Inc. v. Red Hook Container Terminal, LLC Index No.: 651472-2012 We have reviewed Demon Logistics, LLC's ("Demon") responses ("Responses" and "Response") to American Stevedoring, Inc.'s ("American") First Set of Interrogatories ("Interrogatories" and "Interrogatory") and Document Demands ("Demand" and "Demands"). Unfortunately, Demon's Responses are substantially inadequate in numerous respects. In an effort to avoid motion practice, we herewith furnish you with a written summary of our objections. We hope that we can resolve our objections amicably and in good faith. Demon's Interrogatory Responses Responses to Interrogatories No. 1(b), (c), (d), (e), and (f) In response to the above-referenced Interrogatories, Demon provides a nonresponsive answer that it lacks knowledge as to the subjects covered in Interrogatory 1(b), 1(c), 1(d), 1(e), and 1(f). However, those Interrogatories direct Demon to identify all witnesses (i. e persons) who have personal knowledge of the subjects of those Interrogatories. Consequently, Demon's purported answers are unacceptable. Please state whether Demon is aware of any persons with personal knowledge concerning the subject matters of Interrogatories 1(b), 1(c), 1(d), 1(c), and 1(f).
Eugene T. D'Ablemont, Esq, page 2 Response to Interrogatory No. 1(h) Demon failed to respond to Interrogatory 1(h), which directs Demon to "identify all witnesses with personal knowledge of the alleged facts relating to... the Insurer's apportionment of losses under the Non-Dedicated Policy and issuance of the Insurance Checks to any of the Defendants." Please provide Demon's response to the foregoing. Response to Interrogatory No. 2 Interrogatory No. 2 directs Demon to "[i]dentify any and all Documents regarding Demon's operations at the Brooklyn Marine Terminal." In Response, Demon refuses to identify a single responsive document and, instead, claims that the term "operations" is vague and undefined. Respectfully, the term operations does not lack particularity. Rather, operations refers to Demon's harvesting of value from assets owned, including, but not limited to, assets located at the Brooklyn Marine Terminal andlor its presence at said terminal; the nature and extent of Demon's business operations as the purported leasor of equipment to Red Hook Container Terminal, LLC ("RHCT") or otherwise; as well as its use of the Equipment; its storage of any equipment at the Brooklyn Marine Terminal; and/or the extent of its purported losses to equipment located at the terminal due to Hurricane Sandy. Please identify all documents responsive to this Interrogatory or confirm in writing that Demon has no responsive documents in its possession, custody or control. To the extent that Demon claims to have produced documents responsive to Interrogatory No. 2, please identify each of those documents by Bates number. Additionally, please advise whether Demon refused to identify any documents responsive to this Interrogatory on the grounds of privilege by providing us with a privilege log pursuant to CPLR 31 22(b) and Section 10(A) of Justice Sherwood's individual rules. Response to Interrogatory No. 5 Demon's Response to Interrogatory No. 5 states that Gregory Brayman is "the witness at Demon" with personal knowledge of the Non-Dedicated Policy. However, in Demon's specific objections to Interrogatory No. 5, Demon states that it would respond with the identity of individuals with general knowledge, if any, and not witnesses that Demon intends to call at trial. Please clarify this discrepancy and identify all persons with knowledge of the Non-Dedicated Policy. Response to Interrogatory No. 6 Demon's Response to Interrogatory Nab -- that it has no corporate knowledge of witnesses with personal knowledge relating to Interrogatory No. 6 -- is, at a minimum, vague and ambiguous. Please clarify whether Demon can identify any person with personal knowledge concerning the
Eugene T. D'Ablernont, Esq. Page 3 Lease. Demon's Production and Responses to Document Demands General Objections Please advise whether Demon withheld any documents on the basis of its general objections and specify which of Demon's general objections is relied upon to withhold each of these documents. Objection to Definitions and Instruction No. 6 Demon contends that the relevant time period for American's Demands is September 2011 to the date the Complaint was filed. As you are aware, however, American contends that the relevant time period in this action is, in part, the period of time the Equipment has been in RHCT's possession, custody or control (i.e., September 2011 to date). Please produce documents responsive to American's Demands that were withheld on the basis that the relevant time period ended at on the day the Complaint was filed. Responses to Demand Nos. 4, 5, 13, 22, 23, and 60 24, 25, 26, 27, 28, 29, 37, 41, 42, 43, 44, 45, 46, 49, In Response to Demand Nos. 4, 5, 13, 22, 23, 24, 25, 26, 27, 28, 29, 37, 41, 42, 43, 44, 45, 46, 49, and 60, Demon states that "subject to and without waiving the foregoing objections, Demon will undertake a reasonable search and produce non-privileged documents responsive to this Demand, if any exist and can be located with reasonable effort." This is totally unacceptable, as the deadline for discovery was February 5, 2014. Please produce documents responsive to these Demands forthwith or confirm in writing that Demon has no responsive documents in its possession, custody or control. To the extent that Demon claims to have produced documents responsive to these Demands, please identify each of those documents by Bates number. Additionally, please advise whether Demon has withheld any documents responsive to these Demands on the grounds of privilege by providing us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules. Demon's First Production of Documents A number of documents in Demon's first production appear to have been produced without their attachments. For example, Demon_000195, which is a communication identified as responsive to Interrogatory No. 4, identified five attachments, none of which appear to have been included in
Eugene T. D'AbIemont, Esq, page 4 Demon's production. As you are aware, American's definition of Documents includes, inter alia, "all attachments thereto[.]" Please produce all attachments to documents contained in Demon' s first production. To the extent that Demon claims to have produced said attachments, please identify each of those documents by Bates number. Additionally, please advise whether Demon has withheld any documents and/or attachments on the grounds of privilege by providing us with a privilege log pursuant to CPLR 3122(b) and Section 10(A) of Justice Sherwood's individual rules. Documents Bates-numbered Demon_000150, Demon_000161-162, Demon_000168, and Demon_000173-74 each appear to have been redacted. If the documents were redacted, state Demon's basis for so redacting and, if applicable, provide the proper privilege log. Privileged Documents Please advise whether Demon withheld any responsive documents on grounds of privilege and provide us with a privilege log for any documents that were withheld. We look forward to your response. c: All counsel of record (via e-mail)