THOMAS F. KEANE 

ALAN RUSSO ' 

STEPHEN B. TONERt' 

FERN FLOMENHAFT ' 

KEVIN G. HORBATIUK 

RUSSO, KEANE & TONER, LL? ., 

ATTORNEYS AT LAW ! 1: 7 

26 BROADWAY 

YORK, NEW YORK 10004 _ , 

CLAIRE F. RUSH j*---*-'- *-. -.,.---.... .-. ........................... ................... ......... CHRISTOPHER G. KEANE ..-I .................. . : , . I.. :,. L...--.-; 

.-. a : ; , ' . - . . - - ..... DAVID 5. GOULD ;; - +) . ,. 1; . . l.'., .......... ! ', 

OF COUNSEL: ;. . - i: 

SUSAN KEANE ....._ ~, . .. . ........L..... -.. ,..- b 

.. ... ,; ... ! 

..... FRANCESCA A SABBATINO . . . . ...... ... ,.., '. ...., 

I. - . . :.:. . 

JOHN J. K0MA.R 

THERESA VILLANI 

DENISE M. BUSH' 

BRENDA R. HALL 

JOSEFINA A BELMONTE 

MICHAEL J. SWEENEY' 

CHARLENE C. KOW " 

MARIE A. CASTRONUOVO 

MARIE-FABIENNE F. DECAS 

MATTHEW P. MAZZOLA 

LEE-DAVID WEINER 

TINA ALTINEL-PROFITA . r .. . . j 

',\LC0 .\I>LIITrEU IN SEW iE11Sl3 ., - ....... " .,-,.. ___ JOHN A. CORRING aM.3 ,\I)Mlll't'l) 1.S COZIN6c'TIL'l~l :I -. . -; 9 ;,g,,-(&j .AGQ 61WIneo is ,~~ss,\c~[r:ss.rrs . . ... , .. m,U.GC ,\DHITI El) IN 'rtlh I>IS'fb!ICT OF CCI.Cl\llIlA ..... ........... .- : c ........ ..... ............. _,,._ 

........ _ ....... _ ......_. .. 

September 4,2008 

- V7A FEDERAL EXPRESS 

U. S. Magistrate Debra Freeman 

United States District Court 

Southern District of New York 

500 Pearl Street; Room 520 

New York, New York 10007- 13 12 

Re: DOMINIK DIFRISCO v. MARRIOTT INTERNATIONAL, LNC. 

USDC-SD Docket No: 07 Civ. 3531 

Date of Loss: January 3,2007 

RK&T File No.: 640.039 

Dear Judge Freeman: 

On February 28,2008, the undersigned sent a letter to Judge Colleen McMahon requesting 

additional time to complete outstanding discovery including the depositions of the defendant's 

witnesses Ms. Frances Kassner, the defendant's Senior Manager, Corporate Casualty Claims, and 

Mr. Bradley R. Wood the defendant's Senior Vice President, Risk Management. In that request, the 

undersigned requested not only to take the aforementioned depositions, but also to be allowed to 

follow up on those depositions with any discovery demands for relevant documents and/or disclosure 

which were identified in the course of those depositions. 

Judge McMahon Judge McMahon granted that request. In her Order she stated "I would 

TRO 

MOTCHESTER OFFICE -- 26 GLE&U'SIDE PLACE, CHAPPAQUA, NEW YORK 10514 (914) 238-2805 

NEW JERSEY OFFICE -- 127 EAR NOUNT PLEAOAWTAVENUE LIVINGaTOFi. KEM ERBEY 01039 (973) 992-3474 

Case 1:07-cv-03531-CM-DCF Document 21 Filed 09/09/2008 Page 1 of 4
RUSSO, KEANE 6 TONER 

ordinarily cut off discovery and preclude defendants fio consenting (contesting) matters to 

which they have not responded. Do that once or twice and lawyers will stop playing games. But 

I willgrant your request. 1 will not grant any additional time. Ifdfinse counsel continues toplay ,, 

games, he/she should understand that I will impose sanctions in the form a preclusion order. 

The deposition of Ms. Kassner went forward here in New York on March 25,2008. You 

may recall that, at that deposition, Ms. Kassner testified that a 

computerized database of claims information which could identify, collate and prepare claims 

reportlloss-ms data which would specifically identify the number, location and description of guest 

accidents which involved slips and falls which occurred in the defendant hotel's guests' bathrooms. 

That testimony was directly contrary to the statements made by defense counsel since 

November 2007, wherein they consistently maintained that there was no way to provide that 

information in response to plaintiffs' demands, as all such claims/incident/accident reports 

were filed under the claimants' names. Defense counsel Wer represented to this Court that 

based upon the alleged fact that the defendant received approximately 25,000 claims per year across 

6000 hotels, identifjmg specific similar incidents to the subject incident would be next to 

impossible. Consequently, when these computer loss runs were ultimately produced on April 1 1, 

2008, consisting of over 525 similar claims, the deposition of Ms. Kassner had been concluded and 

the plaintiff had been severely prejudiced by the defendant's failure to disclose this information prior 

to Ms. Kassner's deposition. 

You may also recall that the defendant objected to producing Mr. Wood for his deposition 

here in New York. You issued an Order directing that his deposition go forward at the defendant's 

corporate headquarters in Bethesda, Maryland. That deposition went forward on May 14, 2008. 

Also, following extensive motion practice by defense counsel to hold non-party witness, Aimee 

Yohann, in contempt of Court for failing to appear for her non-party witness' deposition, her 

deposition ultimately went forward at defendant's office on August 6"' 2008. 

After experiencing some difficulty in obtaining the deposition transcript of Bradley Wood, 

that -script was ultimately obtained. After reviewing the testimony of Ms. Kassner and Mr. 

Wood, the undersigned prepared and served a Notice to Produce documents and information, 

pursuant to Judge McMahon's Order, and served it on defense counsel. A copy of that Notice to 

Case 1:07-cv-03531-CM-DCF Document 21 Filed 09/09/2008 Page 2 of 4
RUSSO, ICEm 6 TONER 

Produce, dated August 27,2008, with the specific references to the deposition transcript pages where 

the witnesses testimony supplied the basis for the demand, is annexed hereto. 

Defense counsel has now rejected that demand, statingthat such a demand should have been 

served within 30 days following the respective depositions. A copy of defense wunsel letter, dated 

August 29,2008, is also annexed hereto. 

Judge McMahon's Order clearly indicated her permission that plaintiffs counsel would be 

allowed to follow up with discovery demands for documents, infonnation and related discovery 

which were disclosed for the first time during those two depositions. Defense counsel has chosen 

to reinterpret Judge McMahon's Order in an attempt again avoid producing relevant, material and 

necessary documents. 

At each of the defendant's witness' depositions they have attempted to obhscate their 

records keeping, to deny knowledge of the existence of certain documents and records, not produce 

the relevant records prior to depositions and attempted to thwart meaningful and relevant testimony 

from being obtained for the respective witnesses. Almost uniformly, the defendant's witnesses either 

denied knowledge of the existence of certain records and documents, or said that the specific records 

and documents were in the custody of a separate department andor division of Marriott 

International. 

Fran Kassner, in her deposition on March 25,2008, stated that numerous areas of inquiry 

should be addressed to Andy Williams the defendant's Regional Director, Loss Prevention for 

Continental Europe, who had been deposed previously in Paris on February 1 1,2008, prior to certain 

claims and incident report documents being produced. 

Brad Wood, during his deposition on May 14, 2008 in Bethesda Maryland, deferred 

numerous questions as to notice to the defendant of the dangerous conditions of the guests' 

bathrooms to other departments within the Maniott, such as their "Loss Prevention Deparhnent" or 

their "Insurance Department", or their "International Lodging Department". He had identified the 

existence of numerous relevant and necessary documents, reports and loss/claims data, but denied 

that he had custody of such documents. 

Not wanting to prolong the discovery process and take additional depositions in Maryland 

of these respective Marriott departments, and having had to wait for receipt of the defendant's 

Case 1:07-cv-03531-CM-DCF Document 21 Filed 09/09/2008 Page 3 of 4
RUSSO, KEANE Q TONER MEMO ENDORSED 

transcripts so that the documents to be demanded could be specifically identified to that portion of 

the defendant's depositions where these documents were first identified, the attached discovery 

demand was served. 

In addition, the plaintiff has demanded a copy of the deposition transcript of Aimee Yohann, 

as well a copies of deposition exhibits which were marked and used during the other non-party 

witnesses' depositions. As of this time, defense counsel has failed to provide those exhibits or that 

transcript. 

Therefore, I am requesting that this Court issue an Order that defense counsel is to hlly and 

completely respond to the annexed discovery demand, as well as provide a copy of the deposition 

testimony of Aimee Yohann and all exhibits marked and used during the depositions of the other 

non-party witnesses which the defendant subpoenaed for depositions. 

Following which, the plaintiff will have the information necessary to be able to complete the 

proposed "Joint Pre-Trial Order", pursuant to Judge McMahon's Rules. 

MEMO ENDORSED 

SBTImd 

Encls. 

very truly Yours, 

RUSSO, KEANE & TONER, LLPA 

6, y,G? WhS JL&J 

cc: Paul A. Fino, Jr., 

WHITE, FLEISHNER & FINO, LLP +A& dk* vpr;%~' % yL 

6 1 Broadway - 18th Floor TP /,(iX/** /.& e(* % weNew York, New York 10006 &f/- /dAl Fi*,Tc, Elf., 

Your File No.: 104-1 2742-PAF/DMS drt/ fi,~f, 7, un8-1 & -*scli 

SO ORDERED: DATE: ?4/~ ---m-aom m--m-r---wm-mmmm 

DEBRA FREEMAN 

UNITED STATES MAGISTRATE JUDGE 

Case 1:07-cv-03531-CM-DCF Document 21 Filed 09/09/2008 Page 4 of 4