Superb Motors Inc. et al v. Deo et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SUPERB MOTORS INC. et al.,
Plaintiffs, 	MEMORANDUM
AND ORDER
-against-
23-CV-6188 (JMW)
ANTHONY DEO et al.,
Defendants.
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A P P E A R A N C E S:
Emanuel Kataev
Sage Legal LLC
18211 Jamaica Avenue
Jamaica, NY 11423
Attorneys for Plaintiffs Superb Motors Inc., Team Auto Sales LLC and Robert A. Urrutia
Jeffrey Ruderman
Cyruli Shanks & Zizmor LLP
420 Lexington Avenue, Suite 2320
New York, NY 10170
Attorneys for Plaintiffs 189 Sunrise Hwy Auto LLC, Northshore Motor Leasing, LLC,
1581 Hylan Blvd Auto LLC, 1580 Hylan Blvd Auto LLC, 1591 Hylan Blvd Auto LLC,
1632 Hylan Blvd Auto LLC, 1239 Hylan Blvd Auto LLC, 2519 Hylan Blvd Auto LLC, 76
Fisk Street Realty LLC, 446 Route 23 Auto LLC, Island Auto Management, LLC, Brian
Chabrier, Joshua Aaronson, and Jory Baron
Jeffrey Benjamin
The Linden Law Group, PC
250 Park Avenue, Ste 7th Floor
New York, NY 10177
Attorneys for Defendants Anthony and Sarah Deo, Dwight Blankenship, Marc Merckling,
Michael Laurie, Car Buyers NYC, Inc., Gold Coast Cars of Syosset LLC, Gold Coast
Cars of Sunrise LLC, Gold Coast Motors Automotive Group LLC, Gold Coast Motors of
LIC LLC, Gold Coast Motors of Roslyn LLC, Gold Coast Motors of Smithtown LLC,
UEA Premier Motors Corp.
Harry R. Thomasson
3280 Sunrise Highway, Ste Box 112
Wantagh, NY 11793
Defendant Appearing Pro Se
1/16/2026
FILED
CLERK
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
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WICKS, Magistrate Judge:
On January 12, 2026, the deposition of Defendant Anthony Deo (“Mr. Deo”) began. A
dispute arose during the deposition and the parties contacted the Court. Present on the call were
Emanuel Kataev for Plaintiffs and Jeffrey Benjamin for the Deo Defendants.1 The dispute arose
in connection with an assertion of attorney client privilege as raised by Mr. Deo's counsel in
response to questions posed inquiring into conversations Deo had with his former counsel. The
Court reserved a ruling on this issue allowing the parties to brief the issue. (See Electronic Order
dated 1/12/2026.) Now before the Court is Plaintiffs’ Motion to Compel Mr. Deo’s testimony
regarding his communications with his prior counsel, Anthony Colleluori (“Mr. Colleluori”),
who allegedly informed him not to disclose a prior felony conviction on a Department of Motor
Vehicles (“DMV”) application. (ECF No. 385.) Defendant Harry Thomasson, proceeding pro se,
and Deo Defendants oppose this motion.2 (ECF Nos. 386-87.) For the reasons that follow,
Plaintiffs’ Motion to Compel (ECF No. 385) is GRANTED in part.
1 The “Deo Defendants” are Anthony Deo, Sarah Deo, Dwight Blankenship, Marc Merckling, Michael
Laurie, Car Buyers NYC Inc., Gold Coast Cars of Syosset LLC, Gold Coast Cars of Sunrise LLC, Gold
Coast Motors Automotive Group LLC, Gold Coast Motors of LIC LLC, Gold Coast Motors of Roslyn
LLC, Gold Coast Motors of Smithtown LLC, and UEA Premier Motors Corp.
2 Mr. Thomasson’s opposition (ECF No. 386) will not be considered by the Court. Mr. Thomasson makes
arguments purportedly on behalf of the Deo Defendants—something he is prohibited from doing in light
of his disqualification. (See ECF No. 117.) The Court has informed the parties that as a pro se litigant,
Mr. Thomasson has the ability to represent himself and participate in depositions as any other represented
party. (See Electronic Orders dated 1/5/2026 and 1/12/2026.) That right, however, is not unbridled. He
cannot make arguments on behalf of others. See In re Texaco Inc. S'holder Derivative Litig., 123 F. Supp.
2d 169, 172 (S.D.N.Y. 2000), aff'd, 28 F. App'x 83 (2d Cir. 2002) (“The right to proceed pro se in civil
actions is guaranteed by 28 U.S.C. § 1654. It is well-established, however, that this right to proceed pro
se does not encompass the right to proceed pro se on behalf of the interests of another.”) Mr. Thomasson
was cautioned by the Court on May 9, 2025, at an unrelated hearing, that he may not represent Deo
Defendants and is forewarned again not to advance arguments on behalf of others.
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THE LEGAL FRAMEWORK AND DISCUSSION
The attorney-client privilege is an important and well-recognized privilege meant to
“encourage full and frank communication between attorneys and their clients and thereby
promote broader public interests in the observance of law and the administration of justice.” In re
Cnty. of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Swidler & Berlin v. United States, 524
U.S. 399, 403 (1998)). It therefore follows, that when addressing issues of privileged matters,
Courts should tread with caution. Here, Plaintiffs aver that Mr. Deo voluntarily waived the
attorney-client privilege with his prior attorney, Mr. Colleluori, at the January 12th deposition
when he disclosed prior communications. (ECF No. 385 at 4.) The relevant portion of the
deposition is below.
5
6
Q . 	Did
conviction
you 	d i sc l ose 	your 	felony
to 	the 	DMV 	when 	you 	app l ied
7 	for 	and 	were 	approved 	to 	get 	a 	l icense
8 	from 	the 	DMV?
9 	A . 	My 	attorney 	at 	the 	time 	said 	my
10 	case 	was 	sea l ed 	and 	I 	never 	have 	to
11 	check 	that 	box .
12
13
14
15
16
17
18
19
20
Q. 	Who 	was 	that?
MR . 	RUDERMAN : 	You ' re
pointing 	to 	the 	screen .
A . 	Yeah . 	That ' s 	his 	name
MR . 	KATAEV : 	Let 	the 	record
re fl ect 	that 	the 	w i tness 	po i nted
to 	the 	name 	Anthony 	Co ll e l uori ,
C - O - L - L - E - L - U - 0 - R - I .
Q. 	You ' re 	telling 	me 	that 	th i s
21 	attorney 	adv i sed 	you 	that 	you 	don ' t
22 	have 	to 	d i sc l ose 	your 	conviction
23 	MR . 	BENJAMIN : 	Objection .
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(ECF No. 385-1 at 10.)
The party invoking the privilege also has the burden to show that the privilege has not
been waived. Universal Standard Inc. v. Target Corp., 331 F.R.D. 80, 86 (S.D.N.Y. 2019) (citing
Wultz v. Bank of China Ltd., 304 F.R.D. 384, 391 (S.D.N.Y. 2015)); In re Actos Antitrust Litig.,
703 F. Supp. 3d 468, 471 (S.D.N.Y. 2023) (same). Here, the Deo Defendants have not met that
burden.
The Second Circuit informs us that,
courts have found waiver by implication when a client testifies concerning portions
of the attorney-client communication, when a client places the attorney-client
relationship directly at issue, and when a client asserts reliance on an attorney's
advice as an element of a claim or defense. The key to a finding of implied waiver
in the third instance is some showing by the party arguing for a waiver that the
opposing party relies on the privileged communication as a claim or defense or as
an element of a claim or defense. The assertion of an advice-of-counsel defense has
been properly described as a quintessential example of an implied waiver of the
privilege.
In re Cnty. of Erie, 546 F.3d at 228 (internal citations and quotations omitted) (cleaned up).
To summarize, Mr. Deo was asked a question on whether he disclosed his prior
conviction on his DMV application. He answered he did not, but on the advice of counsel. “[B]y
mounting an advice of counsel defense, a party impliedly waives the attorney-client privilege
that ordinarily protects from disclosure the party's communications with counsel.” Oklahoma
Firefighters Pension & Ret. Sys. v. Musk, No. 22-CV-3026 (ALC) (GWG), 2025 WL 2982003, at
*2 (S.D.N.Y. Oct. 23, 2025) (stating that “the Second Circuit made clear in United States v.
Bilzerian, 926 F.2d 1285 (2d Cir. 1991), an implied waiver of privileged communications —
sometimes called ‘at issue’ waiver — arises not merely when a party intends to rely on advice
given by counsel in aid of its defense [but also] arises … where a party ‘asserts a claim that in
fairness requires examination of protected communications.’ Id. at 1292.”)
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Indeed, “a party may be deemed to have waived privilege or work product protection by
asserting a defense of good faith reliance on counsel. The rule is that a party cannot assert
reliance on counsel as a defense or selectively proffer protected information in litigation without
waiving privilege.” Brown v. Barnes & Noble, Inc., 474 F. Supp. 3d 637, 649 (S.D.N.Y. 2019),
aff'd, No. 16-CV-07333 (MKV) (KHP), 2020 WL 5037573 (S.D.N.Y. Aug. 26, 2020), and aff'd,
No. 16-CV-07333 (MKV) (KHP), 2020 WL 5037573 (S.D.N.Y. Aug. 26, 2020) (internal
citations omitted).
A witness cannot claim “reliance on advice of counsel” to explain conduct while at the
same time asserting privilege as to that advice given. Put differently, it is “unfair for a party who
has asserted facts that place privileged communications at issue to deprive the opposing party of
the means to test those factual assertions through discovery of those communications.” Windsor
Sec., LLC v. Arent Fox LLP, 273 F. Supp. 3d 512, 518 (S.D.N.Y. 2017) (collecting cases)
(discussing that fairness is determined case-by-case). Defendants contend that Plaintiffs are
attempting to obtain more privileged information and conduct “an impermissible fishing
expedition.” (ECF No. 387 at 2.)
While both parties argue whether the requested testimony is relevant, that is not the
appropriate inquiry in a privilege analysis. (See ECF No. 385 at 1-2 (arguing relevancy); ECF
No. 387 at 2-3 (arguing against relevancy).) “Broad though it is, the ‘at-issue’ waiver doctrine
does not apply ‘merely because privileged information is relevant to the issues being litigated;’ to
apply, the party asserting privilege must have ‘asserted a claim or defense that he intends to
prove by use of the privileged materials.’” Charbern Mgmt. Grp. LLC v. Borah, Goldstein,
Altschuler, Nahins & Goidel, P.C., No. 22-CV-8137 (VEC), 2023 WL 3945599, at *3 (S.D.N.Y.
June 12, 2023) (quoting Leviton Mfg. Co. v. Greenberg Traurig LLP, 09-CV-8083 (GBD)(THK),
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2010 WL 4983183, at *4 (S.D.N.Y. Dec. 6, 2010)); see also AngioDynamics, Inc. v. Biolitec,
Inc., No. 08-CV-004 (LEK) RFT), 2010 WL 11541926, at *4 (N.D.N.Y. May 25, 2010) (“The
Second Circuit made clear in Erie that relevance is not the correct standard to determine whether
the privilege has been waived, but rather, reliance on privileged advice in the assertion of the
claim or defense is the crucial factor.”)
Here, upon review of the transcript, Mr. Deo placed the attorney-client privilege “at
issue” by uttering the words “my attorney at the time said …” as a defense for nondisclosure of
his prior felony, which Plaintiffs argue is directly related to their racketeering and fraud claims
against Defendants. (ECF No. 385 at 1-2.) Thus, Mr. Deo put the contents of his legal advice
provided by Mr. Colleluori at issue when he insinuated that he relied on that advice. See Thai-
Lao Lignite (Thailand) Co. v. Gov't of Lao People's Democratic Republic, 945 F. Supp. 2d 431,
436 (S.D.N.Y. 2013) (quoting In re Cnty. of Erie, 546 F.3d at 229) (“A party puts the content of
legal advice at issue, waiving the attorney-client privilege, if it ‘rel[ies] on privileged advice
from [its] counsel to make [its] claim or defense.’”)). Now, Mr. Deo attempts to hide behind the
attorney-client privilege after paving the way for Plaintiffs to ask certain questions in connection
with that communication. That cannot be so. “It is well established in this Circuit that a party
may not use the privilege as both a sword and a shield.” Favors v. Cuomo, 285 F.R.D. 187, 198
(E.D.N.Y. 2012).
Plaintiffs also claim there has been a subject-matter waiver, and therefore seek to compel
Mr. Deo “to provide testimony and documentation of all communications with his attorney
Colleluori concerning Deo’s claim that he did not have to disclose his felony conviction on the
DMV application as a result of advice from his attorney.” (ECF No. 385 at 3.) This rule applies
when “considerations of fairness should allow the attacking party to reach all privileged
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conversations regarding a particular subject once one privileged conversation on that topic has
been disclosed, in order to avoid prejudice to the adversary party and distortion of the judicial
process that may result from selective disclosure.” Robbins & Myers, Inc. v. J.M. Huber Corp.,
274 F.R.D. 63, 94 (W.D.N.Y. 2011) (internal citations and quotations omitted). Contrary to Deo
Defendants’ position that Mr. Deo provided a “brief, and candid response,” Mr. Deo voluntarily
admitted that his nondisclosure was due to advice of counsel. (See ECF No. 387 at 2.) That
answer alone, however, does not give Plaintiffs or any other party unfettered access to all prior
communications. It does, however, open the door to further explanation about why he answered
the way he did on the DMV application. See Koumoulis v. Indep. Fin. Mktg. Grp., Inc., 295
F.R.D. 28, 40 (E.D.N.Y. 2013), aff'd, 29 F. Supp. 3d 142 (E.D.N.Y. 2014) (quoting In re Grand
Jury Proc., 219 F.3d 175, 182 (2d Cir. 2000) (“In other words, a party cannot partially disclose
privileged communications or affirmatively rely on privileged communications to support its
claim or defense and then shield the underlying communications from scrutiny by the opposing
party.”)); see also Thai-Lao Lignite (Thailand) Co., 945 F. Supp. 2d at 436 (“After Erie, courts
within this circuit have found that, where a party relies on privileged communications to explain
the reason for its actions, it does not waive privilege as to communications that might indicate
additional reasons.”)
Moreover, Fed. R. Evid. 502 provides,
[w]hen the disclosure is made in a federal proceeding or to a federal office or
agency and waives the attorney-client privilege or work-product protection, the
waiver extends to an undisclosed communication or information in a federal or state
proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed
communications or information concern the same subject matter; and (3) they ought
in fairness to be considered together.
Fed. R. Evid. 502(a).
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The circumstances here do not support a finding of subject matter waiver. The statement
made by Mr. Deo does not go as far as to disclose the entire scope of the privileged
communications. Nor does the one statement by Mr. Deo give rise to any particular subject as the
answer was quite vague. Put another way, the camel’s nose was not that far under the tent.
Finally, the Court must also consider the fairness aspect. Plaintiffs only seek information
as to what Mr. Deo has already testified to, which was his reasoning not to disclose his prior
conviction on the DMV application. With that, any continuation of questioning as to advice of
counsel at Mr. Deo’s deposition shall be limited to that subject matter already disclosed. That is,
Mr. Deo’s understanding that his case was sealed and not having to disclose his prior conviction.
Accordingly, Plaintiffs’ Motion to Compel is granted in part and is limited in accordance
with this Order.
CONCLUSION
For the reasons stated herein, Plaintiff’s Motion to Compel (ECF No. 385) is GRANTED
in part, and Mr. Deo is directed to answer questions limited to his decision not to disclose his
prior conviction on the DMV application.
Dated: Central Islip, New York
January 16, 2026
S O 	O R D E R E D:
/S/James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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