(NAM/GHL) Plaintiffs, RALD M. DICK, GARY L. 1 CORPORATION, EDUCATIONAL 5:96-CV-1215 -v- Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 1 of 22 1 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case DOWER, MICHAEL J. FALCONE, LESLIE G. GRANGER, DONALD W. HOLLINGS, KEVIN L. KANE, EDWARD A. KELLOGG, THOMAS R. KENNEDY, BRUCE A. KEENAN, ANTHONY C. LAVALLE, LEONARD LEVEEN, J. DANIEL LUGOSCH III, MARC A. MALFITANO, PATRICK A.X. PYRAMID COMPANY OF HADLEY, PYRAMID COMPANY OF PYRAMID COMPANY OF HADLEY, MALL GROUP, SILVER CITY HOLYOKE, INDEPENDENCE COMPANY OF GLENS FALLS, GALLERIA GROUP, PYRAMID ONONDAGA, PYRAMID PYRAMID COMPANIES OF CROSSGATES CHAMPLAIN COMPANY, PYRAMID COMPANY, PCK COMPANY, PCM DEVELOPMENT POUGHKEEPSIE GALLERIA DEVELOPMENT COMPANY, OF ITHACA, PYRAMID COMPANY, PYRAMID COMPANY COMPANY OF PLATTSBURGH, PYRAMID COMPANY OF WATERTOWN, SENPIKE MALL COMPANY, PYRAMID COMPANY OF BUFFALO, BERKSHIRE MALL GROUP, PYRAMID MANAGEMENT GROUP, INC., RICHARD K. A. ASKINS, DARIUS BAXTER, JOHN A. BERSANI, ROBERT BREVNIK, KEITH CANNON, WILLIAM L. CAPALLETTI, JOHN C. CHARTERS, ROBERT J. CONGEL, MARK J. CONGEL, W. GARY CRAIG, JE NORTHERN DISTRICT OF NEW YORK DISTRICT NORTHERN COURT STATES DISTRICT UNITED OF SCIENCE) and WORLD OF MODULES, INC. (d/b/a WORLD SCIENCE, INC., ______BOUTIQUES COMPANY, INC:, CLAIRE'S BROOKSTONE RECORD SEAT STORES, INC.; NATIONAL INC., COUNTY INC., AMERICAN SPORTS CENTER, MART, INC., OLYMPIA INC., INC., EDDIE BAUER, EAGLE OUTFITTERS, RETAIL STORES, GYMBOREE GYMBOREE CORPORATION, INC., NATURAL HICKORY FARMS, INC. (d/b/a GYMBOREE), CALIFORNIA, PACIFIC SUNWEAR OF WONDERS, INC., REGIS SUNWEAR STORES CORP., INC., PACIFIC (d/b/a RETAIL VENTURES INCORPORATED CORPORATION, MORRISON AMERICAN EAGLE OUTFITTERS), TUESDAY), SELECT INCORPORATED (d/b/a RUBY COMFORT DISTRIBUTION NAM 2 Defendants. PETER C. STEINGRABER, T V. HUNTER and THRITEE T V. HUNTER RLEY, JOEL D. RIFKIN, RLEY, ee of BRUCE A. KEENAN LIVING ee of BRUCE A. UCK HILL ASSOCIATES, BERT J. CONGEL LIVING TRUST, BERT J. CONGEL Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 2 of 22 2 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case APPEARANCES: Joseph Z. Epstein, Esq. & Flynn Sherman Pryor, Cashman, Esq. Kathryn E. Wagner, 410 Park Avenue New York, New York 10022 and Victor J. Hershdorfer, Esq. Greene, Hershdorfer & Sharpe One Lincoln Center, Suite 330 Syracuse, New York 13202 Plaintiffs Attorneys for Boies, Schiller & Flexner LLP 10 North Pearl Street Michael I. Endler, Esq. Albany, New York 12207 Attorneys for Defendants John A. Bersani, John C. Charters, Edward A. Kellogg, COUNSEL: OF J. Daniel Lugosch, III, Peter C. Steingraber and Robert L. Ungerer & Connolly LLP Williams Esq. Kenneth C. Smurzynski, Michael K. Stern, Esq. 725 12th Street, N.W. D.C. 20005 Washington, and ______MANION, FRANCIS J. MCINERNY, DONALD F. MOORE, MCINERNY, FRANCIS J. MANION, R. NO J. NETTINA, TODD DAVID WILLIAM R. WESLEY TANNER, JOSEPH STOCKWELL, TUOZZOLO, TARBANIA, JAMES A. TAPELLA, DONNA ANDREW THOMAS J. VALENTI, ROBERT L. UNGERER, ROBERT V. M. DICK FAMILY TRUST, VONDEAK, JERALD of RO HUNTER as Trustee as Trust ROBERT V. HUNTER WESLEY F. V. HUNTER as Trustee of TRUST, ROBERT TRUST, ROBER TANNER LIVING FAMILY TRUST, MICHAEL D. BAXTER as Trustees of BAXTER #4, ELDAMAR ASSOCIATES, FALCONE TRUSTS #1 through ASSOCIATES, MOSELLE JDL ASSOCIATES, JOLAINE QUARRY ASSOCIATES, RIESLING ASSOCIATES, ASSOCIATES and WOODCH ROBERT V. RIFKIN, RENEE ST. PIERRE, BRIAN T. SCIERA, BRIAN RENEE ST. PIERRE, V. RIFKIN, ROBERT P. MICHAEL JOSEPH T. SCUDERI, SCHULIAR, RICHARD DANIEL SHULMAN, SHANLEY, C. NAM oup, Inc. (“”RCG”), a contingent-fee lease 3 apply to any communications between plaintiffs apply to any communications it and, accordingly, affirms Judge Lowe’s rulings of it and, accordingly, affirms MEMORANDUM-DECISION AND ORDER MEMORANDUM-DECISION This case involves claims by a group of national retailers (“plaintiffs”), who rent space in of national retailers (“plaintiffs”), by a group claims This case involves A. Ruling on the Scope of Attorney-Client Privilege Judge Lowe’s In 1994 plaintiffs engaged Ross Consulting Gr Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 3 of 22 3 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case Sonneborn, Spring, O’Sullivan & Zenzel, P.C. & Zenzel, Spring, O’Sullivan Sonneborn, Building The Seneca Fayette Street 241 West New York 13202 Syracuse, Defendants Attorneys for Pyramid Esq. L. Sonneborn, James Mordue, D.J.: Hon. Norman A. I. INTRODUCTION by defendant Pyramid partnerships and managed shopping centers owned by defendant defendants to recover alleged Group, Inc. (collectively, “defendants”), against Management 2004 the case was referred to Magistrate Judge George H. Lowe overcharges of rent. In March of process. Judge Lowe has conducted regular status (“Judge Lowe”) to oversee the discovery Judge 17, 2004, progress. On November the discovery and deposition conferences to monitor did not Lowe ruled that attorney-client privilege between plaintiffs’ as well as to any communications and their lease auditing consultants During the course of the conference, Judge Lowe also attorneys and plaintiffs’ consultants. the Court are plaintiffs’ on the scope of discovery. Presently before certain limitations imposed rulings. For the reasons set forth below, the Court 17, 2004 objections to Judge Lowe’s November finds plaintiffs’ objections to be without mer 17, 2004. November II. BACKGROUND FACTUAL NAM

2 In exchange, RCG would receive RCG would In exchange, 1 of issues were raised by plaintiffs in their position of plaintiff American Eagle American position of plaintiff thereafter, of all claims and/or savings that and/or claims thereafter, of all maintained that an attorney-client relationship maintained argued that withholding of such information was of such information argued that withholding 4 ffs immediately sought the opportunity to file a ffs immediately ffs to submit an affidavit setting forth plaintiffs’ ffs to submit ef addressed only the issue of whether attorney- On October 14, 2004, defendants took the de On October 14, On October 18, 2004, both parties participated in a conference call with Judge Lowe. At On October 18, 2004, both parties The parties disagree with respect to what type It should be noted that plaintiffs retained RCG as their lease auditing consultants prior to It should be noted that plaintiffs retained RCG as their lease auditing 2 1 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 4 of 22 4 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case auditing firm, to research and analyze plaintiffs’ lease occupancy costs and to determine whether to determine costs and lease occupancy and analyze plaintiffs’ to research firm, auditing space. of commercial for rent had been overcharged plaintiffs claiming plaintiff, for that RCG performed to discuss the services The witness refused Outfitters. was privileged. Defendants that such information had yet existed between retainer agreement period when no it pertained to a time because improper and plaintiffs. Plaintiffs, however, Pryor Cashman The parties subsequently submitted a retainer agreement. prior to the execution of can be formed both parties from arguments for resolution to Judge Lowe. Judge Lowe heard their disagreement between the attach prior to the execution of a retainer agreement and ruled that no privilege could Plainti particular plaintiff and Pryor Cashman. issue. Judge Lowe granted plaintiffs’ request. with regard to the privilege motion formal plaintiffs filed a letter-brief in support of their position. Accordingly, on October 17, 2004, may result from the work performed by RCG on behalf of plaintiffs. performed the work result from may fifty percent of the first $500,000, and forty percent first $500,000, and forty percent fifty percent of the this point in time, Judge Lowe directed plainti this point in time, client privilege can attach prior to the execution of a formal retainer agreement. Defendants, retainer agreement. client privilege can attach prior to the execution of a formal also addressed a broader issue of whether the that the letter-brief however, maintain involving the non-attorney consultants were within the scope of the attorney- communications client privilege. retaining Pryor Cashman Sherman & Flynn LLP (“Pryor Cashman”) as their attorneys. as their & Flynn LLP (“Pryor Cashman”) Sherman retaining Pryor Cashman letter-brief. Plaintiffs argue that the letter-bri Plaintiffs letter-brief. NAM to in camera 2004. For convenience purposes, the anscripts of status conferences that took 4 ype of issues were addressed by the affidavit ype of issues were addressed by 5 benefit of the attorney, and that the consultants benefit of the attorney, and that the vit was replete with factual and legal contentions vit was replete with factual and legal r between plaintiffs and their attorneys, as required r between plaintiffs R.13A, pp. 18-22. Judge Lowe indicated that he might have to that he might R.13A, pp. 18-22. Judge Lowe indicated See

6 On October 26, 2004, defendants filed a brief in response to plaintiffs’ brief in response filed a 26, 2004, defendants On October

3 Initially, Judge Lowe acknowledged that case law cited by plaintiffs supported their Initially, Judge Lowe acknowledged 5 Judge Lowe addressed the submissions of both parties in an in-person hearing on October of both parties in an in-person hearing the submissions Judge Lowe addressed Defendants provided the Court with unofficial tr During this conference Judge Lowe ruled that with regard to all plaintiffs except one, an During this conference Judge Lowe ruled that with regard to all plaintiffs Plaintiffs maintain that defendants’ opposition brief improperly expanded the narrow that defendants’ opposition brief improperly Plaintiffs maintain Parties also disagree with respect to what t Parties also disagree with respect 5 6 4 3 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 5 of 22 5 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case papers. In their brief, defendants argued that the attorney-client privilege did not apply to any attorney-client privilege did not brief, defendants argued that the papers. In their services were hired to provide lease auditing consultants, because they involving communications an interprete akin to that of rather than services 27, 2004. position. Defendants, however, continued to argue that under a relevant legal precedent, position. Defendants, however, can be privileged only if the intermediary non-attorney intermediary involving a communications for the functions as an interpreter of information contractual relationship with its consultants. On October 22, 2004, plaintiffs submitted the submitted 22, 2004, plaintiffs On October with its consultants. relationship contractual affidavit. requested the privilege to attach. law for by the relevant case here did not play that role. ascertain the relevant dates. place on 10/18/2004, 10/27/2004, 11/10/2004, and 11/17/ as citation system by using the same the status conferences Court will cite to the transcripts of utilized by defendants in their opposition papers. attorney-client relationship came into existence as of the date of the retainer agreement. the retainer agreement. the date of as of into existence attorney-client relationship came the retainer agreements Accordingly, Judge Lowe directed plaintiffs to submit issue of whether attorney-client privilege may attach prior to the execution of the retainer attach prior to the execution of whether attorney-client privilege may issue of plaintiffs’ counsel the existence of any privilege between to one that encompassed agreement and their consultants. in question. According to defendants, the affida in question. According to defendants, addressing the issue of whether communications with non-attorney consultants were privileged. with non-attorney addressing the issue of whether communications a factual background to as that the affidavit was submitted On the other hand, plaintiffs maintain attach the issue of whether attorney-client privilege may assist Judge Lowe in deciding only retainer agreement. prior to the execution of the formal NAM at at pp. 36- See id. See id. R.15A, pp.3-5. Subsequently, See ence on November 10, 2004. At this point in ence on November illed to plaintiffs and other non-plaintiff tenants. illed to plaintiffs and other non-plaintiff quests 99-110 plaintiffs sought from defendants quests 99-110 plaintiffs sought from 6 Judge Lowe concluded the conference by stating that he was going to the conference by stating Judge Lowe concluded See id. R.17A, p.4. See In an Order dated July 29, 2004, Judge Lowe ordered the parties to file any further In an Order dated July 29, 2004, Judge Lowe ordered the parties Judge Lowe convened another status confer Judge Lowe convened another status re As it pertains to discovery, in document Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 6 of 22 6 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case time Judge Lowe heard further arguments on the issue of whether he could rule that all Judge Lowe heard further arguments time involving the consultants were not privileged. communications (1) agreed to produce three categories of documents: In response to those requests, defendants for the stores at issue in this energy surveys for the stores at issue in this lawsuit, (2) energy studies and rates each landlord had actually paid to that show the amounts lawsuit, and (3) documents local utility companies. plaintiffs requests 99-100 no later than August 5, 2005. On that date, on document submissions entries (1) all income a letter-brief requesting production of the following documents: submitted and (both premises on the various shopping centers’ general ledgers that pertain to utilities evaluate individually each communication involving consultants to determine whether it was whether consultants to determine involving communication individually each evaluate that no he could rule Judge Lowe the evidence before that on Defendants responded privileged. protected by the attorney-client privilege. involving consultants were communications would be ripe the question of whether the issue then discussed extensively pp. 22-25. The parties for determination. 37. involving consultants were 17, 2004, Judge Lowe ruled that no communications on November privileged. B. Imposition of Certain Limits on the Scope of Discovery Judge Lowe’s to utility charges b relating a variety of documents give some thought to defendants’ argument and would address it at a later date. and would address it to defendants’ argument thought give some NAM at p.14. See id. at p.11. Judge Lowe also ruled that Lowe directed defendants to produce the Lowe directed defendants sted a clarification of Judge Lowe’s order sted a clarification of Judge Lowe’s tter included categories of documents that were tter included categories of documents See id. 7 es for tenants other than plaintiffs. nd production of which would be inconsistent with nd production of which would be plaintiffs’ objections to Judge Lowe’s November 17, 2004 plaintiffs’ objections to Judge Lowe’s November On November 17, 2004 Judge Lowe clarified his October 27, 2004 order by ruling that 17, 2004 Judge Lowe clarified his October 27, 2004 order by On November At the October 27, 2004 status conference Judge At the October 27, Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 7 of 22 7 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case R.17B, p.7. With respect to the underlying journal entries, Judge Lowe ruled that defendants respect to the underlying journal entries, R.17B, p.7. With defendants did not have to produce energy studi had to produce those only for a six month period. had to produce those only for a six month Judge Lowe’s prior orders. Plaintiffs submitted a letter in opposition to defendants’ request for a letter in opposition submitted Judge Lowe’s prior orders. Plaintiffs clarification. entries only for a three year period general ledger with income defendants had to provide plaintiffs each individual tenant. for utility charges from collected and did not have to identify the amount See common areas), (2) underlying journal entries, (3) the chart of accounts related to the income accounts related (3) the chart of journal entries, (2) underlying areas), common is account that to each income assigned numbers specific code provides the entries (which (4) Energy particular underlying invoices), general ledger and corresponds to recorded on the center, and for all tenants in a given shopping INC (“EAC”) energy audits Auditors & Consultants, requests. in opposition to plaintiffs’ document a brief submitted (5) budgets. Defendants selected by for a period of three years to be in the August 5, 2004 letter identified materials 4, 2004, defendants reque plaintiffs. On November 99-110. request document responsive to plaintiffs’ regarding the production of materials August 5, 2004 le Defendants stated that plaintiffs’ conferences a not discussed during prior status Presently before the Court are rulings. III. DISCUSSION A. Standard of Review NAM , 333 Fed. R. , 11 F.3d 1119, 1123 U.S. v. U.S. Gypsum Co. U.S. v. U.S. Gypsum See Banker v. Nighswander, Martin & See Banker v. Nighswander, Martin Second, plaintiffs maintain that Judge Lowe’s Second, plaintiffs maintain sputes and reversal is appropriate only if the sputes and reversal is appropriate ntiffs argue that this issue was not, from a ntiffs argue that this issue was not, from clearly erroneous when "there are two clearly erroneous 8 Court concludes that plaintiffs’ arguments are Court concludes that plaintiffs’ arguments tial standard of review, magistrate judges are tial standard of review, magistrate ling that attorney-client privilege does not attach to any ling that attorney-client privilege , 16 F.3d 504, 510 (2d Cir.1994). The Court will , 16 F.3d 504, 510 (2d Cir.1994). Marine Midland Bank, N.A. v. U.S. to the issue of attorney-client privilege, Judge Lowe was See Conway v. Icahn Procedurally Proper? The Supreme Court has recognized that "[a] finding is 'clearly erroneous' when erroneous' "[a] finding is 'clearly Court has recognized that The Supreme , 37 F.3d 866, 870 (2d Cir.1994); , 37 F.3d 866, 870 (2d Cir.1994); When a party timely appeals a magistrate judge’s nondispositive order “[t]he district judge order “[t]he district nondispositive judge’s a magistrate appeals timely a party When 1. Ruling Regarding the Attorney-Client Privilege Was Whether Judge Lowe’s Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 8 of 22 8 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case although there is evidence to support it, the reviewing court on the entire evidence is left with the court on the entire evidence evidence to support it, the reviewing although there is has been committed." mistake conviction that a definite and firm to whom the case is assigned shall consider such objections and shall modify or set aside any and shall modify such objections shall consider the case is assigned to whom to law.” be clearly erroneous or contrary judge’s order found to portion of the magistrate Civ. P. 72(a). A finding, however, is not U.S. 364, 395 (1948). as long as "any reasonable views of the evidence," and as such should be affirmed permissible conclusions. factfinder's view of the record" supports the Mitchell deferen (2d Cir.1993). Pursuant to this highly discovery di afforded broad discretion in resolving discretion is abused. address each of plaintiffs’ objections accordingly. address each of plaintiffs’ objections B. Ruling on the Scope of Attorney-Client Privilege Judge Lowe’s Lowe’s ru Plaintiffs object to Judge communications involving consultants. First, plai communications procedural standpoint, properly before Judge Lowe. in question is contrary to existing conclusion that no privilege attached to any communications law. After carefully reviewing the record, the without merit. Plaintiffs argue that with respect NAM r to this Court, nts. According to plaintiffs, the issue was nts. According to plaintiffs, the in their opposition papers; and (3) plaintiffs had in their opposition attorney-client privilege from that time attorney-client privilege from at the attorney-client privilege between d was “buried” in defendants’ opposition brief. October 17, 2004 lette en, pursuant to my authorization, REMCO en, pursuant to my 9 Plaintiffs’ argument is, however, undermined by the papers plaintiffs submitted for by the papers plaintiffs submitted however, undermined is, Plaintiffs’ argument 7 in support of the plaintiffs’ position (1) th in support of the plaintiffs’ position attached wh firm each plaintiff and my and/or Ross Consulting Group ("RCG") first discussed with me and with each first discussed with me and/or Ross Consulting Group ("RCG") was interested in participating in this lawsuit and whether that plaintiff plaintiff between REMCO and/or RCG (collectively (2) that communications regarding against the firm claims "Consultants") and the plaintiffs or my defendants in this action are covered by the forward. in my the law as summarized [U]nder between the client and/or such the attorney, or among communications Plaintiffs argue that they had never raised the issue of whether the attorney-client privilege Plaintiffs argue that they had never The Court cannot agree with plaintiffs’ assertion that the issue of whether any of the The Court cannot agree with plaintiffs’ assertion that the issue of 7 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 9 of 22 9 of Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case consideration to Judge Lowe. Specifically, affidavit submitted by plaintiffs’ attorney, dated by plaintiffs’ affidavit submitted consideration to Judge Lowe. Specifically, that it has been submitted October 22, 2004, explicitly states Furthermore, the affidavit states as follows: Furthermore, asked to determine only if the attorney-client privilege can attach prior to entry into a formal prior to entry can attach privilege the attorney-client only if determine asked to did privilege ruling that attorney-client Judge Lowe’s to plaintiffs, According agreement. retainer and plaintiffs and consultants and between the consultants communications not attach to any raised this because: (1) plaintiffs had never was procedurally improper plaintiffs’ attorneys to a motion, in response the issue was not made Judge Lowe; (2) the ruling on particular issue with defendants’ buried request made but was based on fully address the issue in question. no opportunity to involving consulta attached to any communications and then only “buried” in in defendants’ brief, dated October 26, 2004 - raised for the first time that brief. Indeed, the first section of defendants’ Argument was entitled “The Attorney-Client Privilege Argument defendants’ section of Indeed, the first Auditors To Provide Lease Does Not Apply Because Plaintiffs Hired the Contingent-Fee Lease Auditing Services.” communications with consultants were privilege communications NAM Int’l Bus. Corp. v. R.13A, pp.22-31. At the See , 452 F.2d 841, 843 (8th Cir. defendants, plaintiffs, and Judge Lowe 7(b)(1), however, expressly contemplates that 7(b)(1), however, expressly contemplates ey consultants are within the scope of the ey consultants are Alger v. Hayes 10 e prospective clients and continuing to clients and e prospective on is made during a proceeding which falls under ... on is made

, 526 F.2d 37, 47 (2d Cir. 1975) (citing , 526 F.2d 37, 47 (2d Cir. 1975) During the October 27, 2004 status conference professional to be are intended because they are privileged representative purpose for the performing of the attorney and are implemented confidential for the and giving advice services client's - initially ... The Consultants benefit. with th on behalf of communicating me covered by the attorney-client in handling this lawsuit - are firm assist my decisional authority. privilege under relevant Lowe’s ruling on the issue in question was procedurally Plaintiffs also argues that Judge See id. Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 10 of 22 10 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case end of this discussion, defendants expressly asked the court to rule that none of the end of this discussion, defendants expressly asked the court to rule extensively discussed whether the issue of whether the attorney-client privilege attached to any extensively discussed whether the issue of whether the attorney-client involving consultants was ripe for consideration. communications [a] liberal definition of ‘hearing,’ the trial court cannot refuse to tender it or attempt to exclude it tender it or attempt [a] liberal definition of ‘hearing,’ the trial court cannot refuse to until a later his decision on the motion reserve the record, notwithstanding that the judge may from date.” 1972). Furthermore, “[a]s long as an oral moti 1972). Furthermore, Edelstein a motion may be made orally during a hearing. “The type of ‘hearing’ at which there is no need orally during a hearing. “The type of ‘hearing’ be made may a motion are recorded.” to writing is one in which the proceedings for reducing a motion In light of these admissions, the Court finds plaintiffs’ argument that they had never submitted the that they had never submitted argument plaintiffs’ the Court finds these admissions, In light of with non-attorn communications issue of whether the Court finds that defendants Furthermore, to the Court, without merit. attorney-client privilege with the broaden the issue by arguing that none of the communications did not improperly in their opposition brief, By including this argument consultants were subject to privilege. responded to what plaintiffs’ attorney set forth in his affidavit. defendants merely that a presupposes Plaintiffs’ argument in response to a motion. because it was not made improper only in writing. Fed. R. Civ. P. can be made motion NAM See id. at p.5. Judge Lowe, however, See id. de an oral motion to Judge Lowe for de an oral motion at pp.36-37. Judge Lowe indicated that at pp.36-37. Judge Lowe indicated Id. to yet, but ...[the] thought that somehow I can thought that somehow to yet, but ...[the] at p.37. 11

Id. See id. During the November 10, 2004, status conference defendants once again asked Judge Lowe 10, 2004, status conference During the November As is evident from the discussions that took place during status conferences held on the discussions that As is evident from R.15A, pp.3-5. At this point in time, Judge Lowe stated that he was leaning to resolve the R.15A, pp.3-5. At this point in time, Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 11 of 22 11 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case issue against defendants - i.e., deny them the blanket ruling that no privilege attached to any them issue against defendants - i.e., deny with consultants and instead, as urged by plaintiffs, decide the issue of attorney- communications basis. client privilege on communication-by-communication upon further examination of the issue he may resolve it in defendants’ favor: “I assure you I would resolve it in defendants’ favor: of the issue he may upon further examination and a lot of time to reach. That would save me you want me love in one sense to reach the result going to revisit it.” effort and that’s why I’m with the consultants were privileged. of the communications to rule on the issue of whether any See make a blanket ruling. I am going to think about that.” R.13A, p.36. In response, attorney for R.13A, p.36. In response, going to think about that.” a blanket ruling. I am make saying is I’d welcome issue: “I guess what I’m Judge Lowe to consider the defendants encouraged all one way. why courts have decided this issue and I think there’s a reason you looking at this as you need to look at the nature of the relationship matter And that’s because as a practical basis.” opposed to a conversation-by- conversation communications between the parties in question were subject to attorney-client privilege. privilege. subject to attorney-client in question were the parties between communications a to issue such about his authority uncertain Lowe was initially Even though Judge at. p.28. still to, I am going “... I am following statement: the of the conference he made ruling, at the end buying in not the] thought that I’m intrigued ... [by reserved his ruling until the later date. 10, 2004, defendants ma October 27, 2004 and November in question. The fact that the specific relief and Judge Lowe twice reserved his ruling on the issue on the motion the eventual ruling does not make in written form was not submitted motion NAM the Magistrate Judge suggest that plaintiffs’ the Magistrate Judge suggest that of the communications between plaintiffs and of the communications unity to respond to defendants’ argument that to defendants’ argument unity to respond ourt is unaware of any authority suggesting that ourt is unaware of any authority e not within the scope of the attorney-client e not within the 12

8 R. 13A, p.37. Furthermore, after carefully reviewing the record the Court finds that plaintiffs had after carefully reviewing Furthermore, Plaintiffs also argue that “[i]n no fashion did Plaintiffs also argue that “[i]n no Plaintiffs next argue that they had no opport Plaintiffs next argue In the present case all proceedings were tape-recorded. 8 See Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 12 of 22 12 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case a Magistrate Judge has an obligation to tell the counsel how to proceed in a particular case. If a Magistrate Judge has an obligation brief, he should have asked a written response to defendants’ plaintiffs’ attorney desired to submit an Lowe to extend him Judge Lowe for an opportunity to do so, instead of waiting for Judge invitation to respond. involving any communications opportunities to respond to the issue of whether multiple was first to introduce the consultants were privileged. As discussed above, plaintiffs’ attorney 22, 2004. The issue was issue in question to the court by raising it in his affidavit, dated October consultants as well as consultants and plaintiffs’ attorneys were privileged. This argument, consultants as well as consultants position. The C however, does not help plaintiffs’ communications with non-attorney consultants ar with communications to they “were not given an opportunity that plaintiffs maintain privilege. Specifically, on the record at the October 27 that the Magistrate Judge stated respond, considering meaningfully of the October blanket ruling.” The transcript was inclined not to consider the conference that he otherwise. At the end of the conference, Judge Lowe 27, 2004 conference, however, indicates consider the issue in question and would revisit it at a later explicitly stated that he would further date. that none argument counsel respond” to defendants’ procedurally improper, as rule Fed.R.Civ.P. 7(b)(1) permits the making of an oral motion during of an oral motion the making permits Fed.R.Civ.P. 7(b)(1) as rule improper, procedurally hearing. the recorded NAM e law, the court may not issue a blanket ruling e law, the court may ey consultants are within the scope of the ey consultants are us conference. After carefully reviewing these 13 udge Lowe’s considering the issue of whether, in the issue of whether, considering udge Lowe’s never objected to Judge Lowe’s authority to stion-by-question, or document-by-document basis. stion-by-question, or document-by-document we erred in finding that consultants’ communications with communications we erred in finding that consultants’ s of October 27, 2004 and November 10, 2004 status s of October 27, 2004 and November In fact, the record indicates that, until now, plaintiff never argued that now, plaintiff the record indicates that, until In fact, 9 Contrary to Law? Accordingly, for the reasons set forth above, this Court concludes that Judge Lowe’s ruling Accordingly, for the reasons set 2. Privilege Was Ruling Regarding Attorney-Client Lowe’s Whether Judge In their motion papers plaintiffs argue that they consistently objected to Judge Lowe’s papers plaintiffs argue that they consistently In their motion 9 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 13 of 22 13 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case plaintiffs and plaintiffs’ attorneys were not within the scope of the attorney-client privilege. plaintiffs and plaintiffs’ attorneys under existing cas Specifically, plaintiffs argue that the applicability of instead determine privilege and must attorney-client with respect to issues of such privilege on a plaintiff-by-plaintiff, que regarding attorney-client privilege complied with Federal Rules of Civil Procedure and was complied regarding attorney-client privilege procedurally proper. that Judge Lo Plaintiffs maintain Judge Lowe had no authority to consider the issue in question. Since plaintiffs had multiple in question. Since plaintiffs had no authority to consider the issue Judge Lowe had object to not now but failed to do so, they may address the issue under discussion opportunities to opportunity to respond. on the basis that they had no Judge Lowe’s ruling then extensively discussed during October 27, 2004 status conference and November 10, 2004 November conference and 27, 2004 status during October discussed then extensively to J never objected Plaintiff status conference. with non-attorn communications the present case, attorney-client privilege. conferences, the Court concludes that plaintiffs considering the issue of whether any of the communications with consultants are covered by the considering the issue of whether any of the communications this Court with three attorney-client privilege. In support of their position, plaintiffs provided citations to the transcript of October 27, 2004 stat particular citations, as well as transcript that the issue of whether the attorney- plaintiffs argued consider the issue in question. At most, with consultants should be resolved on client privilege attached to communications a blanket ruling as requested by basis rather than through communication-by-communication acknowledged Judge however, plaintiffs implicitly this argument, defendants. By making should not be Lowe’s authority to resolve the issue in question. Accordingly, plaintiffs because he decided the issue against them. to object to Judge Lowe’s ruling merely permitted NAM for , 111 F.R.D. 40, See U.S. in confidence See von Bulow by Auersperg v. See von Bulow by . If what is sought is not See Summit Ltd. v. Levy is acting as means of translating professional is acting as means essional] service ..., or if the advice ey-client privilege to communications with a ey-client privilege to communications ’ lawyers’ communications with consultants to be ’ lawyers’ communications 14 from the lawyer , 728 F.2d 107, 112 (2d Cir. 1984). , 728 F.2d 107, 112 (2d Cir. 1984). aintiffs failed to meet this burden. aintiffs failed to meet advice that the communication be made be made that the communication legal See U.S. v. Bein , 296 F.2d 918, 922 (2d Cir. 1961). , 811 F.2d 136, 144 (2d Cir. 1987). The privilege attaches “(1) where legal advice of attaches “(1) where legal advice (2d Cir. 1987). The privilege , 811 F.2d 136, 144 In the present case, plaintiffs as parties claiming the benefit of the attorney-client privilege attorney-client the benefit of the as parties claiming case, plaintiffs In the present such to third-party/client communications, Although no privilege attaches specifically is vital to the privilege is What the purpose of obtaining legal advice but only [a third-party’s prof sought is the [third party’s] rather than the lawyer’s no privilege exists. v. Kovel supports Judge Lowe’s conclusion. The Letter of The record before this Court amply Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 14 of 22 14 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case third party depends upon whether such third party third party depends upon whether As fully explained bellow, the Court disagrees with plaintiffs’ position. position. with plaintiffs’ the Court disagrees explained bellow, As fully thereof. of establishing all the essential elements have the burden von Bulow as such, (3) the legal advisor or in his capacity a professional (2) from any kind is sought by the client, (6) are at his in confidence (5) made relating to that purpose , (4) communications the legal advisor, (8) except or by by himself disclosure from protected (7) instance permanently the protection be waived. the fall within the scope of attorney-client privilege if they meet nevertheless may communications of the attorney-client privilege. traditional requirements of the attorn 41 (S.D.N.Y. 1986). The application professional capacity on behalf of acting in his/her or is merely data in his/her field for the attorney the client. As this Circuit has explained: Accordingly, in order for plaintiffs’ and plaintiffs within the scope of attorney-client privilege, plaintiffs must demonstrate that the consultants acted that the demonstrate within the scope of attorney-client privilege, plaintiffs must 17, 2004 status the November as translators or interpreters of auditing data for the attorneys. At conference, Judge Lowe concluded that pl NAM According to the Letter of to the Letter According 10 ew and distribution to ew and distribution to lic utility invoices, store plans, and lic utility invoices, d (i.e., at the landlords’ mall offices, offices, d (i.e., at the landlords’ mall 15 is Court finds neither procedural or legal Since plaintiffs had failed to timely object to the Since plaintiffs had failed to timely his November 17, 2004 ruling. If plaintiffs had his November If this was not the case, plaintiff should have Plaintiffs objects to Judge Lowe’s using Letter Agreement and Bankruptcy Application using Letter Agreement Plaintiffs objects to Judge Lowe’s (1) Review plaintiff’s store cost and location data; (1) Review plaintiff’s to, desk audits, available including, but not limited each type audit service (2) Perform electricity and/or mall utilities (mall audits), store utilities, mall (or landlord field store and/or shopping centers; of CAM), and measuring HVAC components pub leases, landlord invoices, (3) Analyze plaintiff’s selected auditing procedures in the fiel (4) Perform the right to audit exists; shopping center offices, etc. when letters for plaintiff’s revi (5) Prepare and type actual claim plaintiff’s landlords; Furthermore, since the Letter Agreement between County Seat, Inc. and the consultants since the Letter Agreement Furthermore, 10 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 15 of 22 15 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case Agreement, consultants were retained by plaintiff to perform the following functions: the plaintiff to perform consultants were retained by Agreement, stores and review findings with retailer’s staff for joint related files for selected claims; decisions regarding potential Agreement between County Seat Stores, Inc. - a former plaintiff in the lawsuit - and defendants plaintiff in the lawsuit former Stores, Inc. - a County Seat between Agreement of plaintiffs. on behalf were to perform services consultants sets forth issues with Judge Lowe’s reliance on the documents in question, they should have timely voiced in question, they should have timely issues with Judge Lowe’s reliance on the documents their objections to that effect to Judge Lowe. of now, the Court views such objections waived. conduct they complain entered into to be boilerplate, it was reasonable for Judge Lowe to infer that consultants seems with other plaintiffs. identical agreements Judge Lowe of such. Accordingly, th informed in by defendants to him submitted on the documents in Judge Lowe’s relying impropriety to by plaintiffs. and not objected support of their argument to support his ruling with respect to attorney-client privilege. Plaintiffs object to the use of these to support his ruling with respect and County Seat because they set forth the relationship only between the consultants documents respect to this objection, the longer a party to this suit. With Stores, Inc. - an entity that is no the suit as early as March 3, from Inc. had been terminated Court notes that County Seat Stores, the the suit long before from Inc. has been terminated 2004. Thus, County Seat Stores, were documents opposition brief to which the above mentioned an defendants’ submitted attached or long before Judge Lowe issued NAM §3:5, tween plaintiffs and plaintiffs’ attorneys. To tween plaintiffs plaintiffs hired consultants to provide lease plaintiffs hired consultants it of plaintiffs’ attorneys. Plaintiffs argue that 16 were identical to those provided prior to County were identical to those provided ustee’s Application for RCG states that RCG was ustee’s Application for RCG states y, plaintiffs highlight Judge Lowe’s failure to Attorney-Client Privilege in the United States Attorney-Client Privilege in the and communicate information on trade practices practices on trade information and communicate 1 Paul R. Rice, See 11 It is important to note that plaintiffs rather than defendants bear the burden of It is important (6) Present findings in a Management Report including recommendations on on recommendations Report including Management findings in a (6) Present that the consultants began to function as translators after it cannot be said Furthermore, 11 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 16 of 22 16 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case plaintiff’s systems and procedures plaintiff’s systems business. to improve and customs be characterized the services outlined above can with defendants in that none of The Court agrees be interpretation of communication as translation or evidence on record suggests that the contrary, the is further plaintiffs’ counsel. This conclusion rather than to provide advice to auditing services prior to retaining of consultants two years the fact that plaintiffs retained services strengthened by services of the attorneys. with the attorney, retains the agent prior to communicating at 31-32 (2d ed. 1999) (“If the client with the agent were is that the client’s communications the logical and natural assumption an technical assistance - his advice (for example, for the purposes of obtaining primarily advice of the attorney who the client - rather than the legal accountant on a tax matter) subsequently consulted.”). Chapter 11 Tr plaintiffs retained attorneys. The services that to provide County Seat Stores, Inc. constitute lease auditing As concluded above, those services Seat’s retention of Pryor Cashman. fall within the scope of services rather than “translating” of auditing data services that may attorney-client privilege. establishing that communications in question are covered by the client-attorney privilege. establishing that communications present case any evidence indicating that consultants in the Plaintiffs, however, failed to submit acted as interpreters of auditing data for the benef his ruling with when making Judge Lowe did not take into account certain factual information respect to attorney-client privilege. Specificall believed the of plaintiffs’ witnesses who “clearly express the view that they consider testimony NAM

12 to any case standing for that proposition. In 17 t without merit because plaintiffs had never because plaintiffs t without merit stion-by-question, or document-by-document basis. or document-by-document stion-by-question, Plaintiffs do not, however, direct the Court Plaintiffs also argue that under existing case law, the court may not issue a blanket ruling not issue a blanket may law, the court under existing case also argue that Plaintiffs 12 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 17 of 22 17 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case By making this argument plaintiffs fail to realize that in order to determine whether plaintiffs’ or to realize that in order to determine plaintiffs fail this argument By making the attorney-client with third-parties are covered by communications plaintiffs’ attorneys’ whether determine court must a two-step inquiry. First, the engage into must privilege the court this of the attorney. In order to make acting as a “translator” on behalf the third-party is of the relationship between the third-party and the focus on the nature the court must determination relationship exists between the parties in question, the court will attorney. Second, if the requisite are privileged. This between them whether any of the communications have to determine basis. on a communication-by-communication is likely to be made determination is appropriate where the court finds that a third-party is not Accordingly, a blanket ruling for the attorney. If this is the case, there is no need to engage in acting in a “translating capacity” analysis, because regardless of what kind of question-by-question, document-by-document attorney- within the scope of it will not be is contained within those communications information with respect to issues of attorney-client privilege and must instead determine the applicability of the instead determine and must privilege attorney-client to issues of with respect a plaintiff-by-plaintiff, que such privilege on consultants were working as litigation consultants’ for the plaintiffs’ counsel in this law suit.” consultants were working as litigation consultants’ for the plaintiffs’ This Court, however, finds plaintiffs’ argumen submitted the testimony in question to Judge Lowe for consideration. Plaintiffs attempt to in question to Judge Lowe for consideration. Plaintiffs attempt the testimony submitted asked plaintiffs to submit justify this oversight on their part by arguing that Judge Lowe never consultants with to decide whether communications him that would help any factual information however, does not help were within the scope of attorney-client privilege. This argument, obligation to advise the parties plaintiffs’ position. As noted above, the Magistrate Judge has no In the present in support of their respective arguments. what kind of proof they should submit the issue in question. case, plaintiffs were on notice that Judge Lowe was considering relevant for its resolution. all the proof they deemed Accordingly, they should have submitted the the cases in which courts determined cite plaintiffs merely support of their argument, or document. application of the attorney-client privilege to one specific communication NAM ing that number with the aggregate ing that number We will be able to calculate the total We for electricity billed by local utilities to efendants] should easily be able to verify efendants] should easily be able to ven shopping center (i.e., premises utilities ven shopping center (i.e., premises 18 In the present case, Judge Lowe concluded that the requisite relationship did not exist requisite relationship did not Judge Lowe concluded that the In the present case, 3. Erred in Limiting Plaintiffs’ Discovery? Judge Lowe Whether a. Income General Ledgers initial production of the income erred (1) in limiting Plaintiffs argue that Judge Lowe Judge Lowe, plaintiffs gave the following reasons for In their August 5, 2004 letter to that [d Judge Pooler in substance indicated whether the energy charges are inflated by determining the aggregate charges it inflated by determining whether the energy charges are for a gi pays to a given utility company plus common area utilities) and by compar plus common charges it bills to all tenants in that shopping center (i.e., premises utilities plus we are requesting, we seek to area utilities). Thus, by the documents common verify Dr. Nour’s conclusion explicitly straight forward method by the very suggested by Judge Pooler. To explain, the income entries in a general ledger, along with the corresponding basic mathematic journal entries and account codes, will enable us to make calculations in accordance with the above. all tenants at utilities each collected from shopping center for premises amounts utilities. Because we have area common fee) and the landlord administrative (minus showing the chargesreceived documents the gap will demonstrate between these two figures the difference [defendants], utility their to pay [defendants] what and [defendants] to pay tenants the between charge. for the allegedly same company Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 18 of 22 18 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case client privilege. This is so because the existence of relationship between the attorney and the the attorney and between of relationship so because the existence This is client privilege. a the attorney is for “translator” of information acts as a in which third-party third-party the scope of with the third-party fall within that communications prerequisite for establishing attorney-client privilege. in issuing a Judge Lowe did not err and the attorneys. Accordingly, between the consultants privilege issue. this basis with respect to the attorney-client blanket ruling on in ruling that defendants need not produce to three years, and (2) general ledger information that identify specific tenants. general ledgers income general ledgers: requesting production of income NAM at pp.6- See id. red why plaintiffs were seeking tenant-by- red why plaintiffs on at a later date in the event that plaintiffs are on at a later date in the event that plaintiffs to 100 percent. In the present case plaintiffs 19 e information offered by defendants would not be offered e information ll tenants, but refused to produce tenant-by-tenant but refused to ll tenants, nt in time, defendants did not have to produce defendants did nt in time, ree years would prove or disprove plaintiffs’ at p.7. See id. R.17B, pp.5-6. In response, plaintiffs mainly argued that such information response, plaintiffs mainly R.17B, pp.5-6. In See Since plaintiffs consistently maintained that they would prove that defendants had over- Since plaintiffs consistently maintained Plaintiffs also object to Judge Lowe’s limiting initial production of the income general initial production of the income Plaintiffs also object to Judge Lowe’s limiting Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 19 of 22 19 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case 7. Plaintiffs, however, could not explain why th 7. Plaintiffs, however, could not sufficient to undertake calculations suggested by Judge Pooler. As a result, Judge Lowe ruled that sufficient to undertake calculations collected for utility charges did not have to identify the amount in their general ledgers defendants for each individual tenant. utilities to defendants’ aggregate collections for defendants’ energy be comparing for billed them this Court cannot conclude that Judge Lowe to local utilities companies, aggregate payments at that poi abused his discretion in ruling that, In response to this request, defendants offered to produce general ledgers providing daily ledgers providing produce general offered to request, defendants response to this In a from to energy cash receipts relating totals of the basis that such each individual tenant) on was collected from (i.e., how much information Pooler. During the calculations suggested by Judge was not needed to undertake information inqui status conference Judge Lowe October 27, 2004 tenant information. for each individual tenant was. what the overcharge was necessary to demonstrate did not preclude general ledgers. The Court notes that Judge Lowe tenant-specific income requesting tenant-by-tenant informati plaintiffs from have actually been overcharged by defendants for energy that as a group they able to demonstrate costs. by stating that production to three years. Judge Lowe justified this limitation ledgers information of th for a sample of the requested documents assertion that defendants overcharged tenants by 75 NAM See

13 Lowe noted that given the fraud claim Lowe noted that given the fraud cash receipts are collected. The totals of cash limiting the discovery of journal entries to six the limiting onsidering that Judge Lowe gave plaintiffs the onsidering that Judge 20 gations of systematic overcharges, this Court overcharges, systematic gations of Plaintiffs can accomplish this by comparing such data against the corresponding journal such this by comparing Plaintiffs can accomplish b. Journal Entries 17, 2004 status conference Judge During November 13 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 20 of 22 20 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case constantly maintained that defendants engaged in a “pattern” of systematically overcharging of systematically engaged in a “pattern” that defendants maintained constantly alle Given plaintiffs’ energy costs. tenants for This clear error or abuse of discretion. Lowe’s ruling does not constitute concludes that Judge appropriate c to be particularly conclusion seems documentation years: “And then after that additional from statements income opportunity to seek that data, they the plaintiffs have reviewed period has been produced, and after for a three-years R.13B, for other years be produced.” request that I direct that the data and back to me can come p.9. plaintiffs were uncovered in the related lawsuit involving defendants, and the false documents side of the general ledgers. the data reflected on the income entitled to verify the accuracy of to Judge Lowe’s R.17B, pp.9-10. Plaintiffs object months because with such limitation in place, “plaintiffs cannot even test the limited general in place, “plaintiffs cannot even test the limited because with such limitation months which to tie the particular journal entries.” to tenant information ledgers since there is no specific is information no evidence explaining why tenant-specific however, submitted Plaintiffs, to prove their case under Judge necessary for testing accuracy of general ledgers. If plaintiffs are to verify that daily totals of cash receipts recorded in general have Pooler’s theory, they merely totals of cash receipts recorded in journal entries. As the Court ledgers correspond with income of cash receipts in journal entries, there is no need the totals understands it, in order to determine such whom to know the identity of the tenants from entries which reveal amounts paid by each individual tenant for energy charges. entries which reveal amounts NAM tenants in a to be produced. Plaintiffs explain their need for to be produced. Plaintiffs explain the results of the checkmeter. Thus, the checkmeter. the results of ation that could advance [p]laintiff’s r discovery would be warranted. Accordingly, r discovery would ating that “the energy audits are used by 21 ogy, the sum total of these calculations, ogy, the sum s from tenants for energy and compare s from een employed, pursuanteen employed, to the lease, the mid charges each tenant for utilities. for charges each tenant mid onsumption and demand are determined by each lease are determined and demand onsumption Comparable to Judge Pooler’s methodol Comparable the bills, will demonstrate to shopping center’s actual utilities when compared to all tenants and charges between utility charges incurred by Pyramid difference utilities. the same for inform EAC studies would not provide any utilities pursuant to be billed for tenant may to local utility companies. payments to Pyramid’s them given shopping center and for common areas again will enable us to calculate areas again will enable us given shopping center and for common exactly what Pyra with specificity in and demand, the energy consumption theory. The EAC studies estimate They do kilowatt-hours and kilowatts, respectively, for each tenant’s premises. The rates charged by and demand. the cost of that consumption not determine tenants for each unit of c tenants. Moreover, even if an EAC study exists and can vary significantly among has b for a given lease, if a checkmeter the EAC studies will not enable general ledger entries, unlike the income receipt [p]laintiffs to add up Pyramid’s Plaintiffs argue that Judge Lowe erred in ruling on November 17, 2004 that the energy 17, 2004 that erred in ruling on November Plaintiffs argue that Judge Lowe the EAC energy audits for to be derived from all[T]he information Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 21 of 22 21 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case [defendants] as the vehicle to bill the tenants monthly for electricity and specifically reflect what reflect electricity and specifically for as the vehicle to bill the tenants monthly [defendants] Defendants in turn resist production of the documents in question by arguing that of the documents Defendants in turn resist production Plaintiffs responded to defendants’ position by st receipts in journal entries can be determined by merely summing up cash receipts received from cash receipts received up summing by merely can be determined in journal entries receipts with the not correspond entries do entered in journal If the totals unidentified tenants. individual that general income such discrepancy would indicate ledgers, general income totals entered in and furthe information ledgers contain inaccurate constitute abuse to journal entries does not Judge Lowe’s ruling with respect the Court finds that error of law. of discretion of clear c. Studies Energy did not have studies for tenants other than plaintiff tenants in the following way: energy studies with respect to all NAM lings of Magistrate Judge Lowe are lings of Magistrate Judge Lowe umption is.” Plaintiffs, however, failed to submit however, failed is.” Plaintiffs, umption the energy studies in question. Since plaintiffs the energy studies 22 for that specific lease. According to the we’s rulings of November 17, 2004 is DISMISSED we’s rulings of November plaintiffs would be unduly burdensome. To plaintiffs would be unduly burdensome. t finds that plaintiffs’ objections to Judge Lowe’s t finds that plaintiffs’

14 Furthermore, this Court agrees with Judge Lowe’s conclusion that requiring defendants this Court agrees with Judge Furthermore, ORDERED that the November 17, 2004, oral ru ORDERED that the November 14 Case 5:96-cv-01215-NAM-GHL Document 281 Filed 07/22/05 Page 22 of 22 22 Page 07/22/05 Filed 281 Document 5:96-cv-01215-NAM-GHL Case IV. CONCLUSION any evidence that would permit this Court to conclude that plaintiffs are correct in their assessment correct in their that plaintiffs are to conclude this Court permit that would any evidence deduced from can be of what type of information Judge Lowe’s affirms respect to energy studies, the Court their burden of proof with failed to meet ruling on this issue. the foregoing, the Cour Based on Accordingly, it is hereby 17, 2004, oral rulings lack merit. November to Judge Lo AFFIRMED, and plaintiffs’ appeal as without merit. IT IS SO ORDERED. Dated: July 22, 2005 Syracuse, New York the tenants’ demand is and what the tenants’ cons and what the tenants’ is demand the tenants’ substantiate their claim of burdensomeness, defendants submitted an affidavit of Ms. Horstmyer. Ms. Horstmyer. of an affidavit submitted defendants burdensomeness, of substantiate their claim with exactitude even how to determine consuming The affidavit states that it would be time but are instead kept in tenant files are not separately maintained, EAC studies exist as they many an EAC study, defendants arranged by lease. In other words, in order to locate and produce would have to look through individual tenant file to defendants during three selected years will require effect locating all EAC studies in affidavit, 1,340 to 1,823 tenant files for each of the three years. Thus, in total defendants would examine requested EAC studies. have to review a total of 4,020 to 5,469 tenant files to assemble to produce energy studies for tenants other than NAM