Plaintiffs in this action, the New York State Division of Housing and Community Renewal, and the People of the State of New York (acting through Attorney General Letitia James), brought this action against defendant Zara Realty Corp., and numerous individuals and entities affiliated with or controlled by Zara Realty, alleging that defendants violated New York's rent-regulation laws and Executive Law § 63 (12).^[FN1]

During the course of discovery in the action, plaintiffs withheld a number of documents from production to defendants on the ground that those documents came within one or more of various privileges (attorney-client, attorney-work-product, law-enforcement, and common-interest). Plaintiffs also declined to produce witnesses for deposition on the ground that plaintiffs are bringing this action in a law-enforcement capacity; that CPLR 3102 (f) therefore requires defendants to show the presence of "special or unusual circumstances" to obtain testimonial discovery from plaintiffs; and that defendants have not done so.

The Zara defendants moved in motion sequence 002 to compel production of documents withheld on privilege grounds and to compel deposition of witnesses from plaintiffs. The prior court (Erika Edwards, J.), denied the motion, following an in camera review of a subset of documents—chosen by defendants from plaintiffs' privilege log—that plaintiffs withheld as privileged. (See NYSCEF No. 97.) Following Justice Edwards's administrative reassignment to Supreme Court, New York County, Criminal Term, the action was transferred to the undersigned.

The Zara defendants now move for leave to renew and reargue under CPLR 2221 and to compel further discovery and impose discovery sanctions, under CPLR 3124 and 3126. ^[FN2] (See NYSCEF No. 103.) Plaintiffs cross-move to compel these defendants to produce various categories of documents (enumerated in a chart in plaintiffs' cross-motion papers) and to bifurcate this action into liability and damages phases.

The Zara defendants' request for leave to renew is denied. Their request for leave to reargue is granted in part and denied in part; and on reargument, this court adheres to the prior court's rulings. Plaintiffs' cross-motion is granted with respect to several of plaintiffs' requests to [*2]compel; and granted with respect to the remainder of the requests to compel only to the extent that the parties are directed to meet and confer and file a supplemental submission regarding the discovery at issue on those requests. Plaintiffs' request to bifurcate liability and remedy (and to channel discovery accordingly) is granted without opposition.

CPLR 2221 (d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." A movant seeking reargument is therefore required to identify issues of fact or law that the court overlooked or misapprehended in the decision at issue—not merely "argue once again the very questions previously decided." (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979].)

On this motion, the Zara defendants seek leave to reargue several of the court's determinations on mot seq 002, namely that (i) plaintiffs properly withheld documents under the common-interest privilege doctrine; (ii) plaintiffs properly withheld documents under the common-law law enforcement privilege; and (iii) plaintiffs need not produce for deposition numerous DHCR attorneys and supervisors whom the Zara defendants seek to depose. (See NYSCEF No. 107 at 3-9 [opening mem. of law]; NYSCEF No. 124 at 1-6 [reply mem. of law].) These reargument requests are considered in turn.^[FN3]

On motion sequence 002, the prior court held, following its in camera review of a subset of documents selected by defendants, that plaintiffs properly withheld the documents at issue pursuant to multiple applicable privileges. The court also held that those privileges were not waived by plaintiffs' having shared those documents with third parties, because the common-interest privilege doctrine applied. (See NYSCEF No. 97 at 5.)

The Zara defendants now argue that the prior court erred in finding the common-interest doctrine applicable. (See NYSCEF No. 107 at 6; NYSCEF No. 124 at 1-2.) But in doing so, movants simply reiterate the same arguments that the court had considered and rejected. (Compare id. with NYSCEF No. 51 at 11-13 [mem. of law in support of motion to compel].) Repetition is not a valid ground for reargument. The Zara defendants also assert that this court should revisit the determination on motion sequence 002 as to the common-interest doctrine because, considered at a high level of generality, the prior court's "wide application" of the doctrine is inconsistent with its purpose. (NYSCEF No. 5-6.) That the Zara defendants disagree with the scope of the prior court's common-interest ruling, though, is not, without more, sufficient to show for reargument purposes that the court misapprehended the law in rendering [*3]that ruling.^[FN4]

Leave to reargue the court's rulings with respect to the common-interest doctrine is denied.

On motion sequence 002, the prior court held that one of the applicable privileges under which plaintiffs could withhold documents was the law enforcement privilege. (See NYSCEF No. 97 at 4-5.) The Zara defendants argue that the court erred in finding this privilege applicable here, because that conclusion "disregarded the clear case law finding that the law enforcement privilege asserted in freedom of information law proceedings is not recognized in New York litigation." (NYSCEF No. 107 at 7 [emphasis in original].) This argument, which the Zara defendants made on motion sequence 002 (see NYSCEF No. 51 at 13-14), was not expressly addressed in the prior court's decision. This court therefore grants leave to reargue to deal with the argument more directly. On reargument, this court adheres to the prior determination.

The Zara defendants' contention that a common-law law-enforcement privilege has not been recognized by New York courts is impossible to reconcile with binding Appellate Division precedent. (See e.g. Colgate Scaffolding & Equip. Corp. v York Hunter City Servs., Inc., 14 AD3d 345, 346-347 [1st Dept 2005] [holding that the proper course in determining whether the law-enforcement privilege, when asserted, should shield a given set of documents is to review the documents at issue in camera]; accord Badia v City of New York, 214 AD3d 551, 552 [1st Dept 2023] [holding that "Supreme Court providently declined to compel disclosure in response to the supplemental demands as served" because defendants "properly asserted the law enforcement privilege" against having to produce the requested documents].^[FN5] ) The Zara defendants emphasize the decision of Supreme Court, New York County, in Matter of 91st Street Crane Collapse Litigation (2010 NY Slip Op 52395[U], at *4-5 [Sup Ct, NY County 2010]), which expresses skepticism about the precedential foundations of the common-law law-enforcement privilege. (See NYSCEF No. 107 at 7.) But this court is bound by the Appellate Division's precedents in this area.

The Zara defendants also contend that the prior court erred in "fail[ing] to require Plaintiffs to produce," in partially redacted form, "the portions of the documents they are [*4]withholding that are not covered under the law enforcement privilege." (NYSCEF No. 107 at 8.) This contention begs the question. And the Zara defendants do not attempt to identify, using plaintiffs' privilege log, documents that might be subject only to partial protection under the law enforcement privilege (and that are not otherwise privileged on a different ground). The Zara defendants criticize the prior court's approach of reviewing a defendant-chosen sample of 50 withheld documents and rendering a privilege determination accordingly. (See NYSCEF No. 124 at 4-5.) But defendants do not attempt to establish that this approach was legally impermissible—or that, in hindsight, the prior court should have chosen a different sample of documents.

On motion sequence 002, the prior court denied the Zara defendants' motion to compel the production of 10 identified deposition witnesses. (NYSCEF No. 97 at 5-6.) The Zara defendants now move to reargue this ruling. They contend that the court's analysis of their deposition-witness request focused on caselaw pertaining to depositions of NYAG attorneys, whereas their motion to compel sought depositions only of DHCR attorneys and supervisory staff. (See NYSCEF No. 107 at 9.) This court grants leave to reargue to consider whether the distinction that movants seek to draw between depositions of NYAG attorneys/staff and DHCR attorneys/staff meaningfully affects this court's analysis of the motion to compel. It does not. On reargument, therefore, the court adheres to the prior court's determination.

In seeking reargument, movants argue that this court should compel depositions because the "DHCR personnel the Zara Defendants seek to depose have material and necessary information as they interviewed over 170 tenants which provided the basis for the First Amended Complaint." (Id.) This argument suffers from three related fundamental flaws.

First, the Zara defendants are seeking to interview counsel for a party. Eight of the 10 witnesses whose depositions are sought are DHCR attorneys; and the other two are senior staff directly supervising those attorneys. (See NYSCEF No. 67 at 3-5 [reply mem. of law in support of mot. to compel].) Depositions of opposing counsel are disfavored. (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 405-406 [1st Dept 2018]; accord People v National Rifle Assoc. of Am., Inc., 2022 NY Slip Op 33539[U], at *2 [Sup Ct, NY County 2022], affd 223 AD3d 631, 631 [1st Dept 2024].) A party seeking to depose opposing counsel must establish not only that a good-faith belief exists that the information sought is material and necessary, but also that "the deposition is necessary because the information is not available from another source." (Liberty Petroleum Realty, 164 AD3d at 406.) Movants do not attempt to satisfy this requirement.

Second, the Zara defendants' own identified grounds for reargument show that they cannot satisfy the unavailable-information requirement for opposing-counsel depositions. That is, movants argue that they should be able to depose DHCR attorneys and executive staff because the information those individuals gleaned from their interviews of tenants went into plaintiffs' pleadings in this action. (See NYSCEF No. 107 at 9; NYSCEF No. 124 at 6.) But when, as here, the "factual information in [DCHR's] possession comes from documents it has reviewed or from third parties it has interviewed"—and movants have received DCHR's interview notes and can depose the interviewed tenants—depositions of DHCR witnesses "would not produce material and necessary information" and "risk[] disclosure of privileged [*5]information or protected work product." (National Rife Assoc., 223 AD3d at 631.)

Third, these privilege concerns are heightened by the Zara defendants' expressed intent to obtain information, not only about the interviews themselves, but also about the process by which DHCR determined whom to interview as part of their investigation, and how to go about verifying and using facts learned in the interviews. (See NYSCEF No. 67 at 3-5.) That information, which goes both to DHCR's investigative methodologies and its related legal strategies, is likely shielded in substantial part by the law-enforcement privilege (see Badia, 214 AD3d at 552 [discussing scope of privilege]), as well as the attorney-client and attorney-work-product privileges. This court is not persuaded that a sufficient basis exists to compel the depositions of 10 different witnesses when it appears likely ahead of time that those depositions would consist largely of repeated assertions of privilege.

In addition to moving for reargument, the Zara defendants also seek leave to renew, based on additional information that was not put before the prior court on that motion. (See NYSCEF No. 107 at 9-10; NYSCEF No. 124 at 6-7.) A party seeking renewal must identify "new facts not offered on the prior motion that would change the prior determination," and must provide "reasonable justification for the failure to present such facts on the prior motion." (CPLR 2221 [e] [2]-[3].) The Zara defendants do not satisfy these requirements.

The request for renewal is based on a series of undated screenshots of what appear to be one or more Zoom calls in which, among other things, attorneys from NYAG and DHCR discuss this litigation with members of the public, providing updates on the status of the litigation and seeking further information that might be relevant to plaintiffs' claims in the action. (See NYSCEF No. 106.) Counsel for the Zara defendants represent that they were "provided" these screenshots on October 17, 2023 (see NYSCEF No. 104 at ¶ 23)—coincidentally, the day after entry of the prior court's order on motion sequence 002. The Zara defendants assert that in a "clear violation of the rules of discovery applicable to all parties," this "information has not been produced in discovery, is not privileged, and has not even been entered on Plaintiffs' privilege log." (NYSCEF No. 107 at 10.) Defendants do not, however, represent that they were unaware either of the Zoom calls (and the calls' substance) themselves, or of the existence of screenshots reflecting these calls. Nor do they represent that they were unable in the exercise of due diligence to have put this information before the court on motion sequence 002.^[FN6]

In any event, even if this court were to choose to overlook these obvious defects, the Zara defendants do not explain why the screenshots undermine the prior court's ruling on motion sequence 002. To the extent that movants are contending that the screenshots show that plaintiffs waived applicable privileges (see NYSCEF No. 107 at 10), movants have not connected particular agenda items listed in the screenshots with particular claimed privileges and shown how the items constitute waiver. A generalized insistence that waiver must have occurred will [*6]not do. And the Zara defendants do not provide more.^[FN7] Movants also assert that the screenshots "conclusively show[]"that the DHCR attorneys movants wish to depose "have relevant and discoverable information that is material to [their] defense of the matter." (Id.; see also NYSCEF No. 124 at 7 [same].) But they do not explain why. Nor, in any event, would such a showing establish that the prior court erred on motion sequence 002 in requiring the Zara defendants to meet a higher standard before it would direct the deposition of plaintiffs' counsel by defendants. And, as discussed above in Point I.C, supra, the court did not err.

The Zara defendants' request for leave to renew is denied.

Plaintiffs cross-move to compel discovery from the Zara defendants; and to bifurcate this action into liability and remedies phases. (See NYSCEF No. 106.) Defendants, who had previously consented to bifurcation language (see NYSCEF No. 110 at ¶ 15), do not address the bifurcation request in their papers opposing the cross-motion. The request is granted without opposition.

With respect to the request to compel, the Zara defendants raise multiple procedural objections to consideration of this branch of plaintiffs' cross-motion; and also oppose the merits of the request to compel. The court concludes that the Zara defendants' objections are without merit. The branch of the cross-motion seeking to compel discovery is granted in large part; and the parties are directed to meet and confer and file a supplemental submission with the court as to the remainder.

1. The Zara defendants argue first that the motion to compel is improperly premature, and should be denied, because plaintiffs failed to comply with 22 NYCRR 202.20-f's requirements for counsel to meet and confer in good faith before resorting to motion practice. (See NYSCEF No. 126 at 9-11.) This argument is without merit.

The Zara defendants do not dispute plaintiffs' counsel's representation that, following the denial of defendants' motion to compel (mot seq 002), the Zara defendants expressly refused at a court conference to produce any further documentary discovery. (See NYSCEF No. 110 at ¶ 20.) Given that refusal, any further good-faith conferral would have been futile and was not required. There is no merit to the Zara defendants' assertion that, following their blanket refusal to produce anything, plaintiffs were still required to go back and "attempt to meet and confer regarding the specifically-requested documents" before cross-moving to compel. (NYSCEF No. 126 at 11 [bolding and underlining omitted].) Nothing in the CPLR or the Uniform Rules requires that kind of pointless expenditure of time and resources.

2. The Zara defendants also assert that the cross-motion should be denied because it is [*7]raises "discovery requests which are unrelated to the relief sought" in the initial motion. (Id. at 14.) This assertion is groundless. The text of CPLR 2215, governing cross-motions, expressly provides that the relief sought on a cross-motion "need not be responsive to that demanded by the moving party." (See CPLR 2215 [b]; Starr Indem. & Liab. Co. v Monte Carlo, LLC, 227 AD3d 632, 632 [1st Dept 2024] [holding that motion court erred in denying a cross-motion merely for seeking relief unrelated to that requested in the initial motion].)

The Zara defendants misplace their reliance on Primedia Inc. v SBI USA LLC (43 AD3d 685 [1st Dept 2007]). (See NYSCEF No. 126 at 13.) As plaintiffs point out (see NYSCEF No. 128 at 6), the Appellate Division did not hold in Primedia that the court below had erred merely by considering (and granting) a cross-motion that asserted different grounds for relief from those sought on the initial motion. Rather, the problem found by the Primedia Court was specifically that given the lack of relationship between the grounds relied on in defendant's CPLR 3211 (a) motion and the arguments raised in plaintiff's cross-motion, the motion court should not have treated the cross-motion as one for summary judgment under CPLR 3211 (c). (See 43 AD3d at 686.) That holding has no application here.^[FN8]

In contesting the merits of the cross-motion, the Zara defendants argue that plaintiffs are seeking discovery (i) for periods outside the applicable statute of limitations (and outside the permissible temporal scope of discovery); (ii) that is overly broad and burdensome; and (iii) not tied to the allegations of the complaint. These arguments are unpersuasive.

The Zara defendants contend that the limitations period governing plaintiffs' claims is four years, under former CPLR 213-a.^[FN9] And, they contend, compelling them to produce [*8]documents from more than four years before the filing of the complaint in this action "would be wholly improper and contrary to law." (NYSCEF No. 126 at 18 [underlining omitted].) This court disagrees with both contentions.

a. There is no merit to the Zara defendants' position that, as a general matter, a party may not obtain (or compel) discovery from outside the applicable limitations period. Appellate Division precedent—including in the specific context of NYAG antifraud enforcement actions—holds instead that a party may obtain information and documents about conduct that is not itself actionable, as long as those materials would shed light on, or lead to further discovery about, conduct that is actionable. (See Matter of American Dental Coop. v Attorney-General of State of NY, 127 AD2d 274, 284 [1st Dept 1987]; Big Apple Concrete Co. v Abrams, 103 AD2d 609, 614-615 [1st Dept 1984] Nor do defendants provide any contrary authority.

The question, then, is whether the particular limitations period that governs plaintiffs' claims here requires a different result. The Zara defendants claim that it does. This court concludes that it does not.

b. In considering the question, this court must first determine which statute of limitations applies. The Zara defendants contend that because plaintiffs' claims include, and indeed are premised on, allegations of violations of the Rent Stabilization Law (and its implementing regulations) that include rental overcharges, this action is one brought "on a residential rent overcharge." (CPLR 213-a [repealed 2019].) Therefore, they say, the claims are subject to former CPLR 213-a's four-year limitations period. (See NYSCEF No. 126 at 18-19.) Plaintiffs, on the other hand, argue that these claims are brought under Executive Law § 63 (12), and are therefore governed by the six-year limitations period set by CPLR 213 (9). (See NYSCEF No. 128 at 10.) This court agrees with plaintiffs.

Executive Law § 63 (12) supplies the Attorney General with a cause of action to enjoin "repeated fraudulent or illegal acts" and obtain restitution for victims of those acts.^[FN10] The statute "gives the Attorney General standing to redress liabilities recognized elsewhere in the law, expanding the scope of available remedies."^[FN11] (People v Credit Suisse Secs. (USA) LLC, 31 [*9]NY3d 622, 633 [2018].) In doing so, the Attorney General is subject to the six-year limitations period of CPLR 213 (9), which governs all § 63 (12) claims. The Legislature enacted that provision specifically to overturn rulings of the Court of Appeals that "courts must 'look through' Executive Law § 63 (12) and apply the statute of limitations applicable to the underlying liability." (See Credit Suisse, 31 NY3d at 633, citing State v Cortelle Corp., 38 NY2d 83, 86-87 [1975].) And the Appellate Division has held that CPLR 213 (9) is entitled to retroactive effect, governing § 63 (12) claims brought before its enactment. (See People v Trump, 217 AD3d 609, 611 [1st Dept 2023], citing People v Allen, 198 AD3d 531, 532 [1st Dept 2021].) The Zara defendants' argument that this court should, in effect, look through plaintiffs' reliance on § 63 (12) to the underlying alleged violations of the Rent Stabilization Law and Rent Stabilization Code is meritless.

The Zara defendants nonetheless assert that CPLR 213 (9) does not apply here, because its "plain language . . . provides that it is inapplicable" when, as here, a more specific statute of limitations governs the claims at issue. (NYSCEF No. 126 at 20.) This assertion borders on the frivolous. Defendants rely entirely on the fact that the title of CPLR 213 states that it applies to claims when, among other things, a statute of limitations is "not otherwise provided for." (Id., quoting CPLR 213 [bolding and underlining omitted].) As that title itself makes clear, however, claims for which a statute of limitations is "not otherwise provided" constitute only one of several categories of claims to which the six-year period applies.^[FN12] And the operative language of CPLR 213 confirms this obvious point. CPLR 213 provides that "[t]he following actions must be commenced within six years," and applies that requirement to nine independent subsections. The "not otherwise provided for" category of claims identified in the statute's title is governed by CPLR 213 (1), governing "an action for which no limitation is specifically provided for by law." That subsection has no bearing on CPLR 213 (9), which governs "an action by the attorney general pursuant to article twenty-three-A of the general business law [the Martin Act] or subdivision twelve of section sixty-three of the executive law."

c. That CPLR 213 (9)'s six-year limitations period applies here, rather than former CPLR 213-a's four-year period, does not entirely resolve questions about the availability of discovery. As the Zara defendants point out (see NYSCEF No. 126 at 18-19), in addition to imposing a four-year limitations period, former CPLR 213-a also provides that "[t]his section shall preclude examination of the rental history of the housing accommodation prior to the four-year period immediately preceding the commencement of the action.") This bar might be read as applying categorically to all claims implicating the rental history of tenants in rent-stabilized apartments, thereby imposing a four-year lookback period even on claims not subject to former CPLR 213-[*10]a's four-year limitations period.^[FN13]

The parties did not supply, and this court's own research has not found, any case addressing this question. Considered as a matter of first impression, the court concludes that the four-year discovery restriction in former CPLR 213-a must be read as coextensive with the rest of that statute—i.e., that it does not apply to claims outside CPLR 213-a's scope.

Former CPLR 213-a imposes multiple closely linked limits: A four-year statute of limitations for bringing an overcharge action, a four-year lookback period for rental history in considering whether and to what extent overcharge liability exists, and a bar on examining rental history beyond that four-year lookback period. These three restrictions, in other words, function as a mutually reinforcing package. Indeed, the Governor's signing statement for the 1997 amendment to former 213-a, adding the rental-history restrictions to the statute, expressly states that those restrictions are intended to "reinforce" the "four-year statute of limitations for rent overcharge cases." (Governor's Approval Mem, Bill Jacket, L 1997, ch 116 at 9.) And former CPLR 213-a expressly provides that "[t]his section"—and, presumably, the statute of limitations and lookback limits—"shall preclude examination of the rental history" beyond four years prior to the action's commencement.

Here, on the other hand, plaintiffs contend that they are entitled to obtain the disputed discovery in connection with NYAG's claim against defendants under Executive Law § 63 (12). (See NYSCEF No. 128 at 10.) Although both overcharge claims and § 63 (12) claims premised on overcharges assessed in violation of the Rent Stabilization Law arise from the same conduct, the nature of the claims is materially different. A § 63 (12) claim is not brought on behalf of an individual tenant (or tenants) in order to recoup an alleged unlawful overcharge suffered by that tenant. It is brought instead by NYAG to "vindicat[e] the state's sovereign interest in enforcing its legal code . . . within its jurisdiction" as a systemic matter. (Trump, 217 AD3d at 610.) An action under § 63 (12) is not "[a]n action on a residential rent overcharge," properly speaking. (CPLR 213-a [repealed 2019].) For that reason, New York courts held—long before the 1997 addition of rental-history restrictions—that § 63 (12) claims are not subject to former CPLR 213-a's four-year statute of limitations. (See State v Solil Mgt. Corp., 128 Misc 2d 767, 769-770 [Sup Ct, NY County 1985], affd without opn. 114 AD2d 1057 [1st Dept 1985].) And the Legislature (re)confirmed the difference between the two types of claims in 2019, when it enacted CPLR 213 (9)'s six-year statute of limitations for § 63 (12) claims.

Thus, compared to conventional rental-overcharge actions subject to (former) CPLR 213-a, Executive Law § 63 (12) claims are brought by a different party, for different reasons, under a different statute of limitations. In these circumstances, it would be anomalous to impose former CPLR 213-a's companion discovery-related restrictions on the Attorney General's bringing of a § 63 (12) claim. That is particularly true given that the purpose of those discovery limits is to prevent circumvention of CPLR 213-a's statute of limitations—inapplicable here.

Nor do the context and drafting history of § 63 (12), CPLR 213 (9), or CPLR 213-a provide a justification for this anomaly. To the contrary, the Legislature enacted CPLR 213 [*11](9)—ensuring that the Attorney General would retroactively have more time to assert § 63 (12) claims—only two months after amending CPLR 213-a as part of HSTPA to eliminate 213-a's discovery limits for overcharge actions themselves. Subjecting the Attorney General now to CPLR 213-a's limits in the course of § 63 (12) discovery would thus be especially odd. And the Zara defendants do not provide a reason, let alone a compelling reason, why this court should interpret these statutes so oddly.

In short, this court is not persuaded either by the Zara defendants' assertion that (i) the governing "statute of limitations [is] explicitly established by the governing provisions of the Rent Stabilization Law" (and former CPLR 213-a), or their claim that those provisions' "four (4) year lookback . . . also applies to and governs discovery and production." (NYSCEF No. 126 at 24.) Plaintiffs here are not barred by former CPLR 213-a from obtaining what would otherwise be permissible discovery.

The question on plaintiffs' cross-motion, therefore, is whether the scope of the discovery they seek is permissible under CPLR article 31 (governing the discovery process generally). It is.

Plaintiffs seek five categories of documents that they contend are material and relevant to issues in dispute following the parties' stipulation of facts. (See NYSCEF No. 110 at 8-9 ¶ 21.) Plaintiffs represent that these categories constitute the balance of the documentary discovery that they are seeking with respect to liability. (See id. at 8 ¶ 21.)

1. Discovery Category 1 seeks documents provided by defendant Jasmine Homes, LLC, to its tax preparer, to shed light on the precise relationship between Jasmine Homes and the other Zara defendants and how much Jasmine Homes collected from defendants' tenants in allegedly illegal broker fees. (See id.; see also NYSCEF No. 118 at 10-12 [plaintiffs' mem. of law, discussing this request].) The Zara defendants' papers filed in opposition to the cross-motion do not mention this category of documents, much less provide arguments why plaintiffs are not entitled to those documents, in particular. The cross-motion is granted as to Discovery Category 1.

2. Discovery Categories 2 and 3 seek documents related to the Zara defendants' alleged practice of improperly requiring tenants who need front door keys to their units to file an application (supported by a notarized letter or affidavit) and pay a fee to obtain the keys. (See NYSCEF No. 110 at 9 ¶ 21; NYSCEF No. 118 at 10, 12-14.) In particular, Category 2 seeks "[n]otarized letters and affidavits from any tenant or occupant seeking front door keys" in any Zara property from 2013-2023. (Id.) Category 3 seeks, for tenants who signed letters/affidavits covered by Category 2, all notes in Zara's electronic property management system about those tenants, all "applications [and] underwriting forms, and all emails scheduling appointments for those Tenants to come to the Zara office." (Id.)

The Zara defendants' memorandum of law assails the requests in Categories 2 and 3 as unduly burdensome because they "span hundreds of apartments consisting of thousands of electronic and hard-copy records over a 10-year period," requiring defendants and counsel "to review every single tenant file of the thousands of tenants that have rented from Zara over the past 10 years." (NYSCEF No. 126 at 15 [emphasis omitted].) In response, plaintiffs contend that defendants' contentions about burden are (literally) "incredible," because "Zara uses an electronic property management system that stores data and documents related to tenants," and [*12]fails "to explain why an electronic search of responsive records would be burdensome." (NYSCEF No. 128 at 8.)

Neither party's contentions on this issue are wholly satisfactory. Plaintiffs are correct that defendants rely on assertions of burden made at a relatively high level of generality, unsupported by any affidavit on personal knowledge. (See NYSCEF No. 128 at 7.) Additionally, although the scope of plaintiffs' requests in these categories is clearly quite broad (plaintiffs' contrary protestations notwithstanding, see NYSCEF No. 118 at 14), it appears to the court that this broad scope stems in significant part from the breadth of the wrongdoing by defendants that plaintiffs have alleged, as opposed to plaintiffs' document requests being overly vague or general. These considerations cut in plaintiffs' favor.

At the same time, the court is not entirely persuaded by plaintiffs' contention that defendants' use of an electronic property-management system means that defendants would not be burdened by having to search through, and produce, entries for hundreds or thousands of tenants compiled over a ten-year period.^[FN14] (See NYSCEF No. 128 at 8.) This is particularly true given that the record does not reflect whether defendants' databases use consistent entry formats/keywords to refer to the door-key-related tenant letters/affidavits sought in plaintiff's Category 2, to avoid the need for defendants and their counsel to have to examine tenant files one-by-one-by-one. Nor does the court have a sense from the parties' papers of how many tenants are potentially implicated by the requests in Categories 2 and 3—or, for that matter, whether the parties have a sense as to that number, either.

In short, the court is satisfied that the materials sought in these categories are relevant and material to plaintiffs' claims; and that some further production by the Zara defendants of responsive documents will be required. But before the court imposes any specific production obligation with respect to Categories 2 and 3, the parties must provide more information about the details and logistical requirements of the production that plaintiff seeks. The parties are directed to meet and confer on this subject within 14 days of service of a copy of this order with notice of its entry, and to provide the court with updated information by letter on what is entailed by plaintiffs' requests in Categories 2 and 3. The parties shall, if possible, submit a joint letter (or, failing that, two separate letters) to the court by December 3, 2024. Submissions shall be made by e-filing on NYSCEF and email to SFC-Part7-Clerk@nycourts.gov.

3. Discovery Category 4 seeks leases and property-management-system entries for a further 138 apartments during particular time periods, along with "any other documents concerning adding a tenant to the lease during the time period specified." (NYSCEF No. 110 at 9 ¶ 21.) In opposing the request for documents in this category, the Zara defendants do not offer specific reasons why the category is outside the proper scope of discovery. At most, the Zara defendants assert, in general terms, that this request for documents is overly broad and unnecessary given the documents that they have already produced about a different set of apartments; and claim that plaintiffs' delay in seeking documents about these apartments, in particular, is "evidence that these requests are rooted more so in gamesmanship than necessity." (NYSCEF No. 126 at 17-18.) These grounds for opposition are unpersuasive. The cross-motion [*13]is granted as to Discovery Category 4.

4. Discovery Category 5 is plaintiffs' demand for documents relating to the Zara defendants' treatment of tenants in eight specified buildings that they own or manage. (See NYSCEF No. 110 at 9.) With respect to that demand, the Zara defendants contend that plaintiffs are relying on "conclusory and unsupported statements" in an affirmation of counsel, assertedly "premised on surmise, conjecture[,] and speculation," to "demand a new wave of burdensome discovery." (Id.) But the demand at issue is not based merely on general statements of counsel. Rather, it relates to specific allegations in the amended complaint related to those buildings, and to associated causes of action. (Compare NYSCEF No. 110 at 9 [demand], 11-12 [describing the demand], with NYSCEF No. 85 at ¶¶ 126, 143-144, 161-169 [allegations]; id. at ¶¶ 183-185, 189-190, 195-199, 201-206, 209-210, 225-226 [causes of action].) And the Zara defendants do not offer any other reason why this request, in particular, is overly broad or improper. The cross-motion is granted as to Discovery Category 5.

Accordingly, it is

ORDERED that the branch of the Zara defendants' motion seeking leave to renew the court's order entered October 16, 2023, is denied; and it is further

ORDERED that the branch of the Zara defendants' motion seeking leave to reargue the court's October 16, 2023, order, to the extent that it ruled that plaintiffs could withhold privileged documents under the common-interest doctrine, is denied; and it is further

ORDERED that the branches of the Zara defendants' motion seeking leave to reargue the court's October 16, 2023, order, to the extent that it ruled that plaintiffs could withhold documents as shielded by the law-enforcement privilege and could refuse to produce witnesses for deposition, is granted; and, on reargument, the court adheres to those rulings; and it is further

ORDERED that the branches of plaintiffs' cross-motion seeking to compel production of documents in Discovery Categories 1, 4, and 5 (as identified at page 9 of plaintiff's counsel's affirmation, NYSCEF No. 110) are granted, and the Zara defendants must produce responsive documents in those categories within 60 days from service of notice of entry; and it is further

ORDERED that the branches of plaintiffs' cross-motion seeking to compel production of documents in Discovery Categories 2 and 3 (as identified in plaintiff's counsel's affirmation) are granted only to the extent that the parties are directed to meet and confer and provide the court with a supplemental submission (or submissions) about what would be entailed in locating and producing all responsive documents in those categories, as set forth above, on or before December 3, 2024; and it is further

ORDERED that the branch of plaintiffs' cross-motion seeking bifurcation of this action into liability and remedy phases is granted without opposition; and it is further

ORDERED, that upon review of any CPLR 3212 motion brought by either Party, the Court in this case will bifurcate the adjudication of liability and the adjudication of the appropriate relief; that the Court will first make a determination on liability on Plaintiffs' causes of action; and that if liability is found in favor of Plaintiffs on any cause of action, the court shall then subsequently, after appropriate briefing or argument, make a determination on appropriate relief for such cause of action; and it is further

ORDERED that the discovery process currently underway will focus on liability; and that if the court finds that plaintiffs have established liability under any cause of action, the court, with appropriate briefing or argument from the parties, may order additional discovery, an accounting or other appropriate methods to determine the appropriate relief."