FILED: NEW YORK COUNTY CLERK 04/15/2015 03:59 PM

NYSCEF DOC. NO. 143

INDEX NO. 652721/2014

RECEIVED NYSCEF: 04/15/2015

EXHIBIT L

MONTGOMERY McCRACKEN
ATTORNEYS AT LAW

Erin C. Dougherty
Admitted in Pennsylvania, New Jersey &
New York

437 Madison Avenue

29th Floor
New York, NY 10022
Tel: 212-867-9500

212-551-7717
Direct Dial:
212-599-1759
Fax:
Email: edougherty@mmwr.com

March 16, 2015

Via Certified Mail

Bruce D. Meller
Peckar & Abramson, P.C.
41 Madison Avenue, 20th Fl.
New York, NY 10010
Re:

FCRC Modular, LLC v. Skanska Modular, LLC, No. 652721/2014 (Hon. S.

Scarpulla), Subpoena Duces Tecurn Issued to Non-Party Berlin Rosen Ltd.

Dear Mr. Meller:

This firm represents Berlin Rosen Ltd. ("Berlin Rosen") in connection with the subpoena
duces tecum dated October 22, 2014 issued by your office on behalf of Skanska Modular LLC
and Richard A. Kennedy in connection with the above-referenced matter (the "Subpoena").
Please find enclosed Berlin Rosen's Responses and Objections to Defendants' Subpoena
Pursuant to CPLR 3122.
Should you have any questions or concerns, please feel free to contact me at the above
number.
Sincerely yours,

Erin C. Dougherty

Enclosure

MONTGOMERY McCRACKEN WALKER & RHOADS LLP

PENNSYLVANIA NEW YORK NEW JERSEY DELAWARE
A PENNSYLVANIA LIMITED LIABILITY PARTNERSHIP
LOWS A PETRONI. NEW JERSEY RESPONSIBLE PARTNER

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
x
FCRC MODULAR, LLC and FC MODULAR, LLC
(formerly known as FC+Skanska Modular, LLC)

: Index No. 652721/2014

Plaintiffs,
: IAS Part 39
: Justice Saliann Scarpulla

-againstSKANSKA MODULAR LLC and RICHARD A.

KENNEDY,
Defendants.

x
SKANSKA MODULAR LLC and RICHARD A.
KENNEDY,

: RESPONSES AND OBJECTIONS

: TO DEFENDANTS' SUBPOENA
: PURSUANT TO CPLR 3122

Third-Party Plaintiffs,
-againstFOREST CITY RATNER COMPANIES, LLC, FOREST:
CITY ENTERPRISES, INC., JOHN DOES 1-10 AND :
JANE DOE,
Third-Party Defendants.
x
Berlin Rosen Ltd. ("Berlin Rosen"), by and through its undersigned counsel, responds
and objects to the non-party subpoena duces tecum dated October 22, 2014 (the "Subpoena"),
served by defendants/third-party plaintiffs Skanska Modular LLC and Richard A. Kennedy
(together, "Defendants"), as follows:
General Objections
1.

Berlin Rosen understands that plaintiffs and third-party defendants have moved to

dismiss Defendants' counterclaims and third-party complaint (the "Dismissal Motion") in the
above-captioned matter. Berlin Rosen objects to responding to the Subpoena before the Court
has decided the Dismissal Motion. As a consequence of the Dismissal Motion, all discovery is

stayed. See CPLR 3214(b). Furthermore, the Dismissal Motion seeks dismissal of the claim in
Defendants' third party complaint that is the basis for Defendants' Subpoena of Berlin Rosen
(i.e., the defamation claim). If the Dismissal Motion is granted, in whole or in part, that may
completely negate or materially alter the need for discovery from Berlin Rosen. Berlin Rosen, a
non-party, should not be required to incur the expense or suffer the burden of responding to the
Subpoena before the Dismissal Motion is adjudicated. Berlin Rosen will produce responsive
documents not covered by these objections, if any, if the Dismissal Motion is denied and
following a reasonable period of time to search for such documents.
2.

Berlin Rosen objects to the Subpoena because it is premature. As a non-party,

Berlin Rosen should not have to incur the expense or suffer the burden of searching for, locating
or producing documents prior to Defendants undertaking efforts to obtain those documents from
parties. It is likely that most, if not all, of the documents requested in the Subpoena are in the
possession of the parties. Berlin Rosen also objects to the Subpoena insofar as it seeks
documents more readily obtainable from sources for whom production would be more
convenient, less burdensome or less expensive than to Berlin Rosen.
3.

Berlin Rosen objects to the Subpoena to the extent it seeks information or calls for

the production of documents protected from discovery by the attorney-client privilege, the work
product doctrine, the common interest or joint defense privilege, or any other applicable
privilege or immunity from discovery.
4.

Berlin Rosen objects to the extent the Subpoena seeks confidential business and

financial information, proprietary or sensitive commercial information, trade secrets, or any other
confidential information. Berlin Rosen will provide such information, if any, only after the entry
of an appropriate confidentiality order.

5.

Berlin Rosen expressly preserves, to the extent applicable: (a) all objections as to

relevancy, materiality, competency, privilege, confidentiality, authenticity and admissibility; (b)

all objections as to overbreadth and undue burden, or that the documents sought are duplicative,
cumulative, irrelevant and/or not reasonably calculated to lead to the discovery of admissible
evidence; (c) all objections as to vagueness and ambiguity; (d) all rights to object to the use of
any documents produced in response to the Subpoena in any proceeding, including the trial of
this action; (e) all rights to object on any ground to any additional requests or subpoena; and (f)
all rights to revise, correct, supplement or clarify the responses and objections set forth herein.
6.

Berlin Rosen objects to the Subpoena insofar as it seeks to impose obligations

greater than those imposed by the CPLR, the Uniform Civil Rules of this Court or applicable
case law. Berlin Rosen disclaims any obligation to provide any documents beyond what may be
required by such rules or case law. Berlin Rosen objects to the definition of the term
"Document" insofar as that definition is more expansive or inconsistent with the CPLR, the
Uniform Civil Rules of this Court, and/or applicable case law.
7.

Berlin Rosen objects to the definition of the term "Forest City" because it is used

to refer to numerous different entities, including one or more entities not implicated in
Kennedy's defamation claim. Relatedly, Berlin Rosen objects to the Subpoena's third definition
because it refers to a party's "members, officers, former officers, directors, former directors,
agents, former agents, employees, former employees, partners, former partners, assignees,
successors, parent organizations, affiliates, or subsidiaries, or any of its divisions, branches, or
departments and all other persons or entities acting on its behalf." Berlin Rosen does not know
who Defendants believe satisfy these descriptions nor whether (or the extent to which)

Defendants' belief is accurate. Accordingly, any instructions or definitions incorporating these

terms are overly broad, unduly burdensome, vague and ambiguous.
8.

By objecting or failing to object to any particular request in the Subpoena, Berlin

Rosen does not admit the existence or nonexistence of any documents. Accordingly, any
response herein that states that documents will be produced should not be deemed to be a
representation that such documents exist. Instead, it is a representation that, subject to and
without waiver of Berlin Rosen's other objections, non-privileged documents, if any, that are
located in a reasonable search and that are responsive to Defendants' document request will be
produced. Berlin Rosen objects to providing documents outside of its direct possession, custody
or control.
9.

Berlin Rosen reserves its right, but does not assume the obligation, to supplement

its responses and objections to Defendants' Subpoena during the pendency of the abovecaptioned action.
10.

Berlin Rosen incorporates by reference each of the foregoing general objections

into the specific objection set forth below.

Specific Objections
Document Request No. 1: All documents concerning the Press Release, including all
documents identifying (1) its preparation and contents; (ii) any person or entity which or whom
authorized Berlin Rosen to issue the Press Release; (iii) to whom the Press Release was issued;
and (iv) all inquiries made to Berlin Rosen or Jeremy Soffin regarding the Press Release and any
response(s) made to such inquiries including any person or entity which authorized such
response(s).
Berlin Rosen objects to the request because it seeks documents in the possession of
parties to the above-captioned action, or that are available from sources from whom production
would be more convenient, less burdensome or less expensive than to Berlin Rosen. Berlin
Rosen further objects to this request to the extent it seeks documents protected by any privileges
4

or immunities from production, including, without limitation, the attorney-client privilege, the
attorney work product doctrine, and/or the common interest privilege. Berlin Rosen also objects
to this request insofar as it seeks production of confidential documents including, without
limitation, any trade secret information, confidential contacts, sources, information protected by
contract, or other non-public information. Berlin Rosen objects to this request because it is
overbroad and seeks documents that are not relevant to the above-captioned matter, and are not
reasonably calculated to lead to the discovery of admissible evidence. Not every document
concerning the Press Release is relevant to, or likely to lead to admissible evidence concerning,
the defamation claim. Subject to and without waiving all of its general and specific objections, if
the Dismissal Motion is denied, and if the requested documents are not able to be produced by
any party during party document discovery, Berlin Rosen will produce responsive documents, if
any, that are not privileged or confidential, following a reasonable time period to search for such
documents.

Dated: New York, New York

March 16, 2015
MONTGOMERY, MCCRACKEN,
WALKER & RHOADS, LLP
Attorneys for Non-Party Berlin Rosen Ltd.

By:
Charles Palella
Erin Dougherty
437 Madison Avenue, 29' Floor
New York, New York 10022
(212) 201-1931