Opinion
161137/2017
07-09-2019
Haleigh BREEST, Plaintiff, v. Paul HAGGIS, Defendant.
Plaintiff: Emery Celli Brinckerhoff & Abady LLP, 600 Fifth Avenue, 10th Floor, New York, New York, 10020, By: Ilann Maazel, Esq., Johnathan Abady, Esq., Zoe Salzman, Esq., Michele Yankson, Esq., Emma Lerner Freeman, Esq. Defendant: Mitchell Silberberg & Knupp LLP, 437 Madison Avenue, 25th Floor, New York, New York 10022, By: Jeffrey Movit, Esq., Christine Lepera, Esq., Joseph Terrence Gallagher, Esq., Lilian Ji Hae Lee, Esq. Defendant: ChaudryLaw PLLC, 45 West 29th Street, Suite 303, New York, New York 10001, By: Priya Chaudhry Esq.
Plaintiff: Emery Celli Brinckerhoff & Abady LLP, 600 Fifth Avenue, 10th Floor, New York, New York, 10020, By: Ilann Maazel, Esq., Johnathan Abady, Esq., Zoe Salzman, Esq., Michele Yankson, Esq., Emma Lerner Freeman, Esq.
Defendant: Mitchell Silberberg & Knupp LLP, 437 Madison Avenue, 25th Floor, New York, New York 10022, By: Jeffrey Movit, Esq., Christine Lepera, Esq., Joseph Terrence Gallagher, Esq., Lilian Ji Hae Lee, Esq.
Defendant: ChaudryLaw PLLC, 45 West 29th Street, Suite 303, New York, New York 10001, By: Priya Chaudhry Esq.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 006) 88, 89, 90, 91, 92, 93, 94, 95, 158, 159, 160, 161, 162, 169, 170, 171, 172 were read on this motion for DISCOVERY
The following e-filed documents, listed by NYSCEF document number (Motion 009) 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 152, 153, 154, 155, 156, 157, 175 were read on this motion for DISCOVERY
The following e-filed documents, listed by NYSCEF document number (Motion 013) 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 226, 227, 228, 229, 230, 231, 232, 233 were read on this motion for DISCOVERY
DECISION AND ORDER
Motion sequence numbers 006, 009, and 013 are consolidated for disposition and are discussed below.
This is an action to recover upon a claim of gender-motivated violence. Plaintiff alleges that she met defendant at a film premiere while working as a publicist for her then-employer. At some time during the event, plaintiff alleges, defendant offered her a ride home, and, during such ride, he insisted she go to his apartment. It is there, at defendant's apartment, plaintiff alleges, that defendant raped and sexually assaulted her.
MOTION SEQUENCE 006
In motion sequence 006, plaintiff moves for an order, pursuant to CPLR 3101 and 3124, to compel defendant to produce (1) all documents relevant to plaintiff and the instant action, (2) all press communications, (3) all documents about other allegations of sexual assault or misconduct, (4) all statements of support and the identity of the individuals who gave them, and (4) punitive damages discovery (or, alternatively, for an agreement or advance ruling on bifurcation). In opposition, defendants argue that (1) plaintiff is not entitled to business records of defendant, (2) both parties should produce their non-privileged communications with the press and PR firms, (3) defendant's settlement communications are protected, (4) plaintiff's demand regarding statements of support are harassing and improper, and (5) plaintiff's request for punitive damages discovery is intrusive and premature. Defendant also cross-moves for a protective order barring plaintiff from seeking further party or non-party discovery regarding plaintiff's motion sequence 006 requests.
CPLR 3101 requires full disclosure of all matter material and necessary in the prosecution or defense of an action. The discovery sought by plaintiff concerns documents defendant may or may not possess regarding plaintiff and the instant action. Documents concerning plaintiff and the defendant, and this case, could be material and necessary to this action, and, to the extent that documents of this nature exist, they are as a general matter discoverable. Thus, plaintiff is entitled to such documents, to the extent that plaintiff is seeking non-attorney-client privilege information, or information not protected as attorney work product, or information that does not qualify as trial preparation materials.
For defendant's press communications to merit protection from disclosure as attorney-client privilege information or attorney work product, "[t]he predominant purpose of a communication must involve legal advice" ( Gottwald v. Sebert , 58 Misc 3d 625 ). Though the communications may reflect counsel's legal advice and mental impressions, "the discussion of such matter with a public relations firm for the primary purpose of advancing a public relations strategy—and not for the purpose of developing or furthering a legal strategy—results in the loss of the protection of attorney-client privilege" (id. ). In the instant action, then, to avoid disclosure, defendant's communications with his public relations firms, either directly or through his attorneys, cannot be for the purpose of spinning the information in the media or for business purposes, but must be that of legal advice intended to develop or further his legal strategy. If defendant's communications are not predominantly to aid in litigation, those communications are not cloaked with attorney-client privilege, or attorney work product protection, and, so, are discoverable.
Plaintiff also seeks documents concerning other allegations of sexual assault or misconduct involving defendant. Plaintiff's cause of action against defendant alleges that he violated New York City Administrative Code 8-903, the New York City Victims of Gender-Motivated Violence Protection Act. To support a claim under that provision, the gender animus element must be expressly pled. "Animus can be shown through factors such as ‘perpetrator's language, severity of the attack, lack of provocation, previous history of similar incidents, absence of other apparent motive, and common sense’ " (see Fierro v. Taylor , 2012 U.S. Dist. LEXIS 186433). Defendant argues that whatever documents may exist that are responsive to plaintiff's demand would be confidential and protected settlement communications. To the extent that there are responsive documents, plaintiff is presumptively entitled to such documents as they are material and necessary to plaintiff's cause of action. Whether there is a history of similar behavior is relevant to assess plaintiff's claim. Material information should be produced, and, to the extent that there are confidential agreements that specifically bar defendant from producing their content, defendant shall identify the date any such agreements were entered into, the parties to said agreements, including last known contact information for said parties, and the jurisdiction, case name and index/docket number for any legal action or administrative proceeding resolved by such agreements.
Regarding plaintiff's request for the entirety of the statements of support and identity of the individuals who gave those statements, "a party [can] not deny discovery into allegations they placed in controversy" ( Hoenig v. Westphal , 52 NY2d 605 ). Defendant includes in his verified answer excerpts from what he describes as statements of support. Defendant now argues that plaintiff's request for those statements and the identities of the authors is harassing and improper. However, as defendant has placed those statements of support at issue by including them in his answer, he cannot now deny discovery into those statements. Plaintiff is presumtively entitled to discovery of those statements and their authors.
With regard to plaintiff's request for punitive damages discovery, the court finds this request to be premature, as there is not yet a determination that punitive damages are warranted (see Sterling Nat. Bank v. Ernst & Young LLP , 21 Misc 3d 1141 ); see also Dufresne v. Duemler , 108 AD2d 1102. Plaintiff's alternate request for bifurcation is also premature.
MOTION SEQUENCE 009
In motion sequence 009, defendant moves for an order, pursuant to CPLR 3124, to compel plaintiff to produce documents responsive to defendant's document requests and to respond fully to defendant's interrogatories. In opposition, plaintiff argues that defendant's document requests, which include a request for press communications, employment records, social media documents, medical records and interrogatories, are irrelevant, non-discoverable and improper. Plaintiff also argues that they have already provided information on the Jane Does.
Defendant's first request is for communications between plaintiff and the press. As discussed supra , communications between counsel and a public relations firm may be discoverable if the predominant purpose of said communications is not for the purpose of developing or advancing legal strategy (Gottwald v. Sebert, supra ). Similarly, if plaintiff's communications with her public relations firm, either directly or through counsel were not to aid in litigation, then those communications are not afforded attorney-client privilege or attorney wok product protection and should be produced or provided.
Defendant also seeks the terms and history of plaintiff's employment through document requests and interrogatories. Document request number 10 is moot, based on the court's decision in motion sequence 003. Document request number 11, as drafted, seems to be overbroad and unduly burdensome. Moreover, the court is unable to discern what defendants are seeking. With regard to interrogatories numbers 6-7, plaintiff has placed her employment history at issue by placing said history in her complaint. Thus, defendants are entitled to documents concerning said employment history.
With regard to defendant's request for social media accounts and postings, "The threshold inquiry for courts addressing disputes over the scope of social media discovery is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information" ( Forman v. Henkin , 30 NY3d 656 ). Plaintiff, in her complaint, has stated that she has been unable to have any intimate relationship with a man after the alleged assault. Plaintiff's social media accounts and the information that is stored there, in this court's view, may reasonably be expected to contain relevant information as to plaintiff's damages allegations. The discovery sought is targeted and appropriately tailored and may yield evidence relevant to plaintiff's assertion of her injured relationships with men—and, as such, is discoverable.
Defendant also seeks information regarding plaintiff's mental health records. Plaintiff does not oppose the substance of this request, but finds issue with the time limit that is requested. Defendant seeks mental health records for a total of 13 years -- all records as of the date plaintiff turned 18 years old. Plaintiff opposes, arguing that defendant is not entitled to 13 years' worth of documents, and that plaintiff is willing to produce records for two years prior to the alleged incident and five years after the incident. Plaintiff's medical records are relevant and necessary to this action. Neither party has provided substantive case law that supports his or her views on the period of years for which documentation or information should be produced or provided. The court finds that records from three years prior to the alleged incident until the present should be produced in discovery. The court's assessment is that records from this period should provide a reasonable, relevant and yet not overly burdensome view into plaintiff's mental health history.
Defendant requests that this court overrule objections plaintiff has made to certain interrogatories because the questions call for a narrative response. In reviewing the disputed interrogatories, with the exception of two, the interrogatories seek little more than to have plaintiff re-state, in another narrative, the essential narrative already provided by plaintiff in the complaint and presumably would not lead to otherwise relevant and material information. To the extent not already answered, however, plaintiff should answer defendant's interrogatories numbers 25 and 32 in full.
With regard to defendant's document requests, defendant lists a number of requests that have been unanswered by plaintiff. Plaintiff opposes, arguing that she has already provided the information that defendant requests. Defendant has failed to proffer any information to aid the court in concluding that plaintiff has failed to provide documents relevant to their requests. This court cannot make an assessment as to the questions to which plaintiff allegedly did not answer in a vacuum. Defendant's request to compel plaintiff to produce documents to specific document demands is denied.
MOTION SEQUENCE 013
In motion sequence 013, plaintiff moves for an order, pursuant to CPLR 3101 and 3124, to compel defendant to produce responses to interrogatories numbers 10 and 14. Defendant opposes, arguing that plaintiff's interrogatories do not seek material and necessary information. Defendant also cross-moves for a protective order barring plaintiff from seeking responses to interrogatories numbers 10 and 14, and from filing additional discovery motions.
CPLR 3101 requires full disclosure of all matter material and necessary in the prosecution or defense of an action. The interrogatories to which plaintiff seek responses requests that defendant provide contact information for persons defendant has communicated with and is presently in communication with concerning plaintiff and the instant action. Communications that defendant has had or continues to have regarding the alleged incident, the plaintiff or this action are relevant and may lead to material and necessary information. To the extent that communications responsive to the request are privileged, defendant should provide a detailed privilege log identifying the privileges asserted.
Accordingly, it is
ORDERED that motion sequence 006 is granted in part and denied in part; and it is further
ORDERED that the portion of motion sequence 006 seeking all documents relevant to plaintiff and the instant action is granted, in that defendant should produce all responsive non-privileged documents, and, to the extent that documents are privileged, defendant should provide a detailed privilege log identifying the types of documents that exist, the title, date and other detailed information; and it is further
ORDERED that the portion of motion sequence 006 seeking all press communications is granted, in that defendant should produce all non-privileged communications between defendant and the public relations firm and counsel and the public relations firm, and defendant should provide a detailed privilege log identifying all privileged communications; and it is further
ORDERED that the portion of motion sequence 006 seeking documents of other allegations of sexual assault or misconduct involving defendant is granted, and, to the extent that there are confidentiality agreements that specifically bar defendant from producing their content, defendant shall identify the date any such agreements were entered into, the parties to said agreements, including last known contact information for said parties, and the jurisdiction, case name and index/docket number for any legal action or administrative proceeding resolved by such agreement; and it is further
ORDERED that the portion of motion sequence 006 seeking the statements of support and the identities of who gave them is granted; and it is further
ORDERED that the portion of motion sequence 006 seeking punitive damages discovery or in the alternative, for an agreement or advance ruling on bifurcation is denied; and it is further
ORDERED that defendant's cross-motion to motion sequence 006 is denied; and it is further
ORDERED that the portion of motion sequence 009 seeking all press communications is granted, in that plaintiff should produce all non-privileged communications between plaintiff and the public relations firm and counsel and the public relations firm responsive to document request numbers 20-21, 23-24, and 26-27 and responses to interrogatories numbers 11-12, and plaintiff shall provide a detailed privilege log identifying all privileged communications; and it is further
ORDERED that the portion of motion sequence 009 seeking responses to interrogatories numbers 6-7 is granted; and it is further
ORDERED that the portion of motion sequence 009 seeking responses to document request number 7 and interrogatories numbers 8-10 is granted; and it is further
ORDERED that the portion of motion sequence 009 seeking documents responsive to document requests numbers 15 and 17 and responses to interrogatories number 45 is granted, in that plaintiff is directed to provide responsive documents from three years before the alleged incident until the present; and it is further
ORDERED that the portion of motion sequence 009 seeking responses to interrogatories numbers 25, 27, 30, 32, 34, 35, 41, 45, and 47 is granted in part, in that plaintiff should provide responses to interrogatories numbers 25 and 32; and it is further
ORDERED that the portion of motion sequence 009 seeking documents responsive to document demand numbers 19, 22, and 25 is denied; and it is further
ORDERED that the portion of motion sequence 009 seeking documents responsive to demand number 10 is denied as moot, in view of the court's decision in motion sequence 003; and it is further
ORDERED that the portion of motion sequence 009 seeking documents responsive to demand number 11 is denied; and it is further
ORDERED that motion sequence 013 is granted, and defendant is required to produce responses to interrogatories numbers 10 and 14; and it is further
ORDERED that defendant's cross-motion to motion sequence 013 is denied; and it is further
ORDERED that all documents required to be produced and all interrogatory responses required to be provided by the within order shall be produced or provided within 20 days of the date of this order; and it is further
ORDERED that counsel are directed to appear for a compliance conference in Part 43, located at 60 Centre Street, Room 412, on August 15, 2019 at 11:00 a.m.
This constitutes the decision and order of the court.