Opinion
No. 107409/11.
06-17-2014
Karla DEL GALLO, Michael J. Ricciutti, as Administrator for the Estate of Gianni Marie Ricciutti, Deceased, and Michael J. Ricciutti, Individually, Plaintiffs, v. CITY OF NEW YORK, Central Park Conservancy, Inc., The Wildlife Conservation Society and Beucler Tree Experts, LLC, Defendants.
Lozner & Mastropietro, Brooklyn, Attorneys for Plaintiffs. O'Connor Redd LLP, White Plains, Attorneys for Defendant the City of New York. Zachary Carter, Esq., Corporation Counsel, New York, Attorney for Defendant. Gorton & Gorton LLP, Mineola, Attorneys for Defendant Beucler Tree Experts LLC. Jones Hirsch Connors Miller & Bull P.C., New York, Attorneys for Wildlife Conservation Society s/h/a the Wildlife Conservation Society.
Lozner & Mastropietro, Brooklyn, Attorneys for Plaintiffs.
O'Connor Redd LLP, White Plains, Attorneys for Defendant the City of New York.
Zachary Carter, Esq., Corporation Counsel, New York, Attorney for Defendant.
Gorton & Gorton LLP, Mineola, Attorneys for Defendant Beucler Tree Experts LLC.
Jones Hirsch Connors Miller & Bull P.C., New York, Attorneys for Wildlife Conservation Society s/h/a the Wildlife Conservation Society.
Opinion
KATHRYN E. FREED, J.
RECITATION, AS REQUIRED BY CPLR2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
| PAPERS | NUMBERED | |
|---|---|---|
| NOTICE OF MOTION AND AFFIDAVITS ANNEXED | 1,2(Exs.A–F) | |
| NOTICE OF CROSS–MOTION AND AFFIDAVITS ANNEXED | 3,4(Exs.A–L) | |
| CENTRAL PARK'S ANSWERING AFFIDAVIT | 5.(Exs.A–I) | |
| OTHER ANSWERING AFFIDAVITS | 6,7 | |
| REPLYING AFFIDAVITS | 8.9 | |
| EXHIBITS | ||
| OTHER |
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS:
In this action, plaintiffs sue to recover damages for the death of Gianni Marie Ricciutti, the infant daughter of plaintiffs Karla Del Gallo and Michael Ricciutti, and for personal injuries sustained by plaintiff Karla Del Gallo (Del Gallo or plaintiff), resulting from a falling tree limb in Central Park in June 2010 (the accident). Plaintiffs move for a protective order with respect to certain of defendants' discovery demands. Defendants City of New York (City), Central Park Conservancy (CPC), The Wildlife Conservation Society (WCS), and Beucler Tree Experts, LLC (Beucler) oppose the motion; and WCS cross moves to compel plaintiffs to produce certain documents and information.
DISCUSSION
As all parties in this case recognize, the scope of pre-trial discovery under CPLR 3101(a) is broad. CPLR 3101(a) provides that “[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action” and “embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits.” Spectrum Sys. Intl. Corp. v. Chem. Bank, 78 N.Y.2d 371, 376 (1991). The words “material and necessary” as used in the statute are “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.” Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406 (1968) ; see Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 461 (1983).
Notwithstanding the policy of favoring “open and far-reaching pretrial discovery” (DiMichel v. South Buffalo Ry. Co., 80 N.Y.2d 184, 193 [1992],cert denied sub nom Poole v. Consolidated Rail Corp., 510 U.S. 816 [1993];Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954 [1998] ), “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure.” Geffner v. Mercy Med. Ctr., 83 AD3d 998, 998 (2d Dept 2011) (citations omitted); see Foster v. Herbert Slepoy Corp., 74 AD3d 1139, 1140 (2d Dept 2010) ; Gilman & Ciocia, Inc. v. Walsh, 45 AD3d 531 (2d Dept 2007) ; see also H.R. Prince, Inc. v. Elite Envtl. Sys., Inc., 107 AD3d 850, 850 (2d Dept 2013) (“discovery demands which are unduly burdensome, lack specificity, or seek privileged and/or irrelevant information are improper and will be vacated”). The trial courts have broad discretion to supervise discovery and to determine whether information sought is material and necessary. See Martinez v. Bauer, 103 AD3d 537, 537 (1st Dept 2013) ; Mironer v. City of New York, 79 AD3d 1106, 1108 (2d Dept 2010) ; Auerbach v. Klein, 30 AD3d 451, 452 (2d Dept 2006). Litigants “are not without protection against unnecessarily onerous application of the discovery statutes. Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party.” Kavanagh, 92 N.Y.2d at 954 (internal quotation marks and citations omitted); see Andon v. 302–304 Mott St. Assocs., 94 N.Y.2d 740, 747 (2000) ; Cynthia B., 60 N.Y.2d at 461.
CPLR 3103(a) authorizes a court, “at any time on its own initiative or on motion of any party,” to issue a “protective order denying, limiting, conditioning or regulating the use of any disclosure device .... to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.” See Vaccaro v. Weinstein, 2014 WL 2198797, *1, 2014 N.Y.App.Div. LEXIS 3766, *3, 2014 N.Y. Slip Op 3825 (2d Dept May 28, 2014). “The burden of showing that discovery is improper is on the party seeking a protective order.” Sage Realty Corp. v. Proskauer Rose L.L.P., 251 A.D.2d 35, 40 (1st Dept 1998).
Plaintiffs move for a protective order with respect to the following discovery demands: ultrasound fertility records, enrollment and exercise records from a cognitive therapy website, “LinkedIn” records, driving records, ob/gyn records, website or social media records, and insurance records from Liberty Mutual; driving records and insurance records of Michael Ricciutti; a list of pre-natal vitamins and dosages being taken by plaintiff; information about Jesse Benitez and Deanna Benitez; pictures taken at a sister-in-law's pool; bank records regarding payouts; printouts of emails from Del Gallo from 2002 to date; credit card payments; a camera used by Ricciutti on the date of the accident; and the address of plaintiff's brother. See Isaac Affirmation in Support of Plaintiffs' Motion (Isaac Aff.), at 2.
In its cross motion, WCS seeks an order compelling plaintiffs to produce the following items: authorizations for the “current records” of John Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; the current address of Jesse Benitez and Deanna Benitez; site information and passwords necessary to review Del Gallo's records pertaining to her LinkedIn account; and authorizations for all obstetrical and gynecological records pertaining to plaintiff of Dr. Hoffman and Shady Grove Fertility. See Connors Affirmation in Opposition to Plaintiffs' Motion and in Support of WCS's Cross Motion (Connors Aff.), ¶ 2.
Obstetrical and Gynecological Records
When a party's physical or mental condition “is in controversy” (CPLR 3121 [a] ), a party generally is required to make available relevant medical records. See Dillenbeck v. Hess, 73 N.Y.2d 278, 286–287 (1989) ; Cynthia B., 60 N.Y.2d at 461. The physician-patient privilege, which may otherwise prohibit disclosure of information obtained by a physician treating a patient, is deemed waived by a litigant “when, by bringing or defending a personal injury action, that person has affirmatively placed his or her mental or physical condition in issue.” Dillenbeck, 73 N.Y.2d at 287;see Arons v. Jutkowitz, 9 NY3d 393, 409 (2007) ; Hoenig v. Westphal, 52 N.Y.2d 605, 608–609 (1981) ; Koump v. Smith, 25 N.Y.2d 287, 294 (1969). “In order to effect a waiver, a party must affirmatively assert the condition and place that condition in issue .” Fox v. Marshall, 91 AD3d 710, 711–712 (2d Dept 2012), citing Dillenbeck, 73 N.Y.2d at 288;see Koump, 25 N.Y.2d at 294. The “waiver, however, does not permit wholesale discovery of information regarding the protected party's physical and mental condition.' “ Carter v. Fantauzzo, 256 A.D.2d 1189, 1190 (4th Dept 1998) (citation omitted); see Iseman v. Delmar Medical–Dental Bldg., 113 A.D.2d 276, 279 (3d Dept 1985). “[A] party does not waive the privilege with respect to unrelated illnesses or treatments.” McLane v. Damiano, 307 A.D.2d 338, 338 (2d Dept 2003) ; see Felix v. Lawrence Hosp. Ctr., 100 AD3d 470, 471 (1st Dept 2012) ; Bozek v. Derkatz, 55 AD3d 1311, 1312 (4th Dept 2008). “The burden of proving that a party's mental or physical condition is in controversy, for purposes of obtaining relevant ... records, is on the party seeking the records.” Budano v. Gurdon, 97 AD3d 497, 498 (1st Dept 2013), citing Koump, 25 N.Y.2d at 300.
Plaintiffs object to production of the obstetrical and gynecological records of Drs. Hoffman and McClamrock pertaining to plaintiff, and fertility records of Shady Grove Fertility and Radiology–Ultrasound, as privileged and unrelated to any of Del Gallo's claimed injuries. Defendants contend that they are entitled to such records because plaintiff's broad allegations of injuries, and claim for loss of enjoyment of life, place her entire physical condition in controversy. See Connors Aff., ¶¶ 41–42; Gross Affirmation in Opposition (of CPC) to Plaintiffs' Motion (Gross Aff.), ¶ 12.
Contrary to defendants' contentions, plaintiff Del Gallo has not affirmatively placed her gynecological condition in issue so as to warrant discovery of the requested medical records. Plaintiff has alleged extensive and severe injuries as a result of being hit by a large tree limb, and those injuries, as identified in her Bill of Particulars, include numerous head and brain injuries, such as multiple skull and facial fractures, intra-cranial hemorrhage, damage to optic nerves, brain swelling and traumatic brain injury ; as well as orthopedic injuries to her right and left arm, left shoulder, left leg, and lung contusions, respiratory failure, fractured teeth, hearing loss, dizziness, neuropathy, scarring, and more. See Verified Bill of Particulars, Ex. C to Isaac Aff. Plaintiff's claimed injuries also include anxiety, memory deficits, depression, confusion, and survivor's guilt, all of which are claimed to have contributed to a lesser quality of life and a loss of enjoyment of life. Id.
Plaintiff's claimed injuries do not encompass any gynecological conditions or sequelae, and defendants produce no testimony or other evidence connecting plaintiff's gynecological treatment to the accident or to the injuries sustained in the accident. See Guzman v. Metropolitan Transp., 2012 WL 5287618, 2012 N.Y. Misc. LEXIS 5011, 2012 N.Y. Slip Op 32657(U) (Sup Ct, N.Y. County 2012) (where plaintiff claimed neck and elbow fractures, prior head injury not put in issue although defendants claimed it might have caused fall); Sgambellone v. Wheatley, 165 Misc.2d 954, 958 (Sup Ct, Schenectady County 1995) (plaintiff did not waive privileged status of medical records containing her gynecological and reproductive history by instituting lawsuit seeking recovery for back, leg, arm and hand injuries sustained in accident); cf Lopez v. Kelly St. Realty, Inc., 106 AD3d 534 (1st Dept 2013) (“potential connection” between left leg injury sustained in accident and subsequent left ankle fracture permitted disclosure pertaining to latter injury); Romance v. Zavala, 98 AD3d 726 (2d Dept 2012) (defendants entitled to records of treatment for kidney disease related to claim of back injuries and problems urinating but not to records of unrelated conditions). There also is no evidence to support the City's assertion that “[t]hese treatment records may indeed be contrary to plaintiff's other treating record.” Page Affirmation in Opposition (of City) to Plaintiffs' Motion (Page Aff.), ¶ 20. See Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421 (2d Dept 1989) (“unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy”).
Further, the cases on which defendants rely, holding broadly that a plaintiff places her entire medical condition in controversy when there are “broad allegations of physical injury and mental anguish” (Farrell v. E.W. Howell Co., LLC, 103 AD3d 772, 773 [2d Dept 2013] ), or claims for loss of enjoyment of life, are neither determinative nor particularly instructive here. See e.g. O'Rourke v. Chew, 84 AD3d 1193 (2d Dept 2011) (records of psychological disorder discoverable where mental anguish alleged); Amoroso v. City of New York, 66 AD3d 618 (2d Dept 2009) (records regarding preexisting conditions material and necessary to defense where prior medical conditions had potential impact upon claim for loss of enjoyment of life); Vanalst v. City of New York, 276 A.D.2d 789 (2d Dept 2000) (where plaintiff claimed left knee injury from trip and fall, records of history of lower back pain resulting from prior accidents relevant to loss of enjoyment of life); see also Farrell, 103 AD3d at 773 (where plaintiff had two work-related injuries within three years prior to subject accident, and an automobile accident after the subject accident, court ordered plaintiff to provide authorizations for medical treatment commencing three years prior to subject accident). The decisions shed little light on the nature and extent of the alleged injuries at issue in those cases, and do not demonstrate that, in this case, plaintiff has placed her entire medical condition in issue. See Gumbs v. Flushing Town Ctr. III, L.P., 114 AD3d 573, 574 (1st Dept 2014) (plaintiff did not place his entire medical condition in controversy, even where claimed loss of enjoyment of life, by seeking damages for orthopedic injuries); Garriz v. City of New York, 2012 WL 2396518, 2012 N.Y. Misc. LEXIS 2929, *5–6, 2012 N.Y. Slip Op 31623(U) (Sup Ct, N.Y. County 2012) (disagreeing with Second Department cases that broad allegations of injuries put entire medical condition in issue).
Defendants' argument that plaintiff's obstetrical and gynecological records must be produced because they are material and relevant to plaintiff's claim that she experienced depression and emotional distress as a result of the June 2010 accident, also is unavailing. WCS, in particular, contends, based on records received from plaintiff's psychotherapist, that plaintiff's gynecological records are needed to know “to what degree plaintiff's psychological injuries are associated [with the alleged tort] and to what extent they are explained by other causes.' “ Connors Aff., ¶ 42, quoting Velez v. Daar, 41 AD3d 164, 165–166 (1st Dept 2007). WCS also argues that defendants are entitled to examine those records “to determine whether [plaintiff's] disability is related to the accident or to her gynecological problems.' “ Connors Aff., ¶ 42, quoting Wachtman v. Trocaire Coll., 143 A.D.2d 527, 528 (4th Dept 1988) (court directed production of gynecological records where plaintiff testified that she was disabled due to gynecological problems after accident). Velez and Wachtman, however, are inapposite. In Velez, a medical malpractice case based on an alleged failure to diagnose cancer, plaintiff's psychotherapist's records were discoverable where plaintiff acknowledged at his deposition that he told his therapist that factors other than cancer also were causes of his depression and anxiety. 41 AD3d at 165. The Court found that, by putting his psychological condition at issue, plaintiff waived the psychotherapist-patient privilege, and the therapist's records were material and necessary to knowing to what degree plaintiff's psychological injuries could be attributed to the alleged malpractice and to other causes. Id. at 166. Here, as WCS itself demonstrates, defendants have already obtained relevant psychological treatment records, which indicate that, from May 2011 to January 2012, plaintiff experienced grief and emotional distress from the death of her daughter as well as from a June 2011 miscarriage and associated problems. See Progress Notes of Jo Ellyn Pederson, Ph.D., Exs. J, K, L to Connors Aff. Plaintiffs have not objected to producing those records, and apparently do not object to the discovery of other psychiatric records related to plaintiff's psychological and emotional distress damages resulting from the accident. See Isaac Reply Aff., at 10. Thus, to the extent that defendants argue that the obstetrical and gynecological records are needed to, in essence, further parse out the cause of plaintiff's depression and emotional distress as between her gynecological problems and the loss of her daughter and injuries sustained in the accident, that argument is insufficient to warrant discovery of the obstetrical and gynecological records sought. See Napoli v. Crovello, 49 AD3d 699, 699 (2d Dept 2008) ; Chervin v. Macura, 28 AD3d 600, 601 (2d Dept 2006) ; see also Alford v. City of New York, 116 AD3d 483, 983 N.Y.S.2d 522 (1st Dept 2014) (no discovery of mental health records allowed where no showing of “particularized need” for confidential records of matters not directly at issue); Elmore v. 2720 Concourse Assoc., L .P., 50 AD3d 493 (1st Dept 2008) (same).
As the Court of Appeals has emphasized, “discovery determinations are discretionary; [and] each request must be evaluated on a case-by-case basis.” Andon, 94 N.Y.2d at 747. Although the court remains cognizant of “the strong policy supporting open disclosure” (id. ), a balance of the “competing interests” here leads to the conclusion that defendants' purported need for plaintiff's obstetrical and gynecological records to prepare their defense does not outweigh the burden of subjecting plaintiff to the disclosure.
Social Media Records
While courts continue to grapple with, and formulate guidelines for, discovery of electronically stored information, including social media records, courts recognize that, generally, “[d]iscovery of [social networking postings] requires the application of basic discovery principles in a novel context.' “ Giacchetto v. Patchogue–Medford Union Free Sch. Dist., 293 FRD 112, 114 (ED N.Y.2013) (citation omitted); see Winchell v. Lopiccolo, 38 Misc.3d 458, 461 (Sup Ct, Orange County 2012). As in other contexts, a “party demanding access to social networking accounts must show that the method of discovery will lead to the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the claims.' “ Id., quoting Abrams v. Pecile, 83 AD3d 527, 528 (1st Dept 2011) ; see Patterson v. Turner Constr. Co., 88 AD3d 617, 618 (1st Dept 2011) ; Vyas v. Campbell, 4 AD3d 417, 418 (2d Dept 2004). As previously stated, the scope of discovery, while broad, does not give a party “the right to uncontrolled and unfettered disclosure' “ (Gomez v. State of New York, 106 AD3d 870, 872 (2d Dept 2013 [citation omitted] ), and “the fact that the information [Defendant] seeks is in an electronic file as opposed to a file cabinet does not give [it] the right to rummage through the entire file.' “ Giacchetto, 293 FRD at 114 (citation omitted). “[D]igital fishing expeditions' are no less objectionable than their analog antecedents.” Caraballo v. City of New York, 2011 WL 972547, 2011 N.Y. Misc. LEXIS 1038, *6, 2011 N.Y. Slip Op 30605(U) (Sup Ct, Richmond County 2011), citing McCann v. Harleysville Ins. Co, of NY, 78 AD3d 1524, 1525 (4th Dept 2010) ; see Tapp v. New York State Urban Dev. Corp., 102 AD3d 620, 621 (1st Dept 2013) ; Auerbach, 30 AD3d at 452;Winchell, 38 Misc.3d at 461.
Courts have used “a two-prong analysis for determining whether social media accounts are discoverable. First, the court determines whether the content in the accounts is material and necessary, and then it balances whether the production of this content would result in a violation of the account holder's privacy rights.” Jennings v. TD Bank, 2013 WL 5957882, 2013 N.Y. Misc. LEXIS 32783(U), *3 (Sup Ct, Nassau County 2013), citing Fawcett v. Altieri, 38 Misc.3d 1022 (Sup Ct, Richmond County 2013). To warrant such discovery, “defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's [social media] account-that is, information that contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.' “ Tapp, 102 AD3d at 620–621, quoting Patterson, 88 AD3d at 618;see Kregg v. Maldonado, 98 AD3d 1289, 1290 (4th Dept 2012). “Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant's social media records is tantamount to a costly, time consuming fishing expedition.' “ Fawcett, 38 Misc.3d at 1028;see Pecile v. Titan Cap. Group, LLC, 113 AD3d 526, 527 (1st Dept 2014) (vague and generalized assertions that information might contradict plaintiff's claims provides no basis for discovery of social media accounts); Tapp, 102 AD3d at 621 (argument that Facebook postings may reveal information contradicting plaintiff's disability amounts to request for fishing expedition); cf Richards v. Hertz Corp., 100 AD3d 728 (2d Dept 2012) (discovery of private Facebook postings allowed where material posted on public page contradicted deposition testimony); Romano v. Steelcase Inc., 30 Misc.3d 426, 431 (Sup Ct, Suffolk County 2010) (same).
Defendants have demanded authorizations from Del Gallo for “the content of her entire LinkedIn account.” Connors Aff., ¶ 19; see WCS's Notice to Produce, dated August 30, 2012, Ex. F to Connors Aff., ¶ 1; CPC's Combined Demand, dated August 27, 2012, Ex. H to Gross Aff., ¶ 11. WCS contends that plaintiff's deposition testimony provides the necessary factual predicate for discovery of her LinkedIn account and her “responses to former colleagues' inquiries regarding her post-accident condition and communications between Karla Del Gallo and employment recruiters are material to her damages claims.” Connors Aff., ¶ 18. CPC argues that, because plaintiff claims that she has been “totally disabled” and “partially disabled” from working since the accident, it is entitled to discovery of plaintiff's LinkedIn account “to learn about plaintiff's on-line description of her employment abilities, any employment offers she may have received, her acceptance of any offers, and so forth ... [which] may help determine the amount of damages.” Gross Aff., ¶ 15.
At her deposition, Del Gallo testified that she had a LinkedIn account prior to the June 2010 accident, and she left it up after the accident to keep in touch with former colleagues. Del Gallo Dep ., August 14, 2012, Ex. A to Connors Aff., at 364–365. She stated that she has responded to former colleagues “who are asking how I'm doing. Not about work-related stuff.” Id. at 365. She also stated that recruiters have contacted her about positions and she has responded that she is “not looking for employment at this time.” Id.
Defendants do not argue that the content of plaintiff's LinkedIn account will contradict her testimony that she told recruiters that she was not seeking employment, and, given her acknowledgment that she did not look for work, the requested information likely may be cumulative and unnecessary. See Winchell, 38 Misc.3d at 461. Nevertheless, plaintiff does not dispute that information related to her communications with recruiters may be relevant to her lost earnings claim, and previously, in response to defendants' demands for a list of all recruiters who have contacted her from LinkedIn, she stated that she would provide such records should they become available. See Omnibus Response to Defendants' Discovery Demands, Ex. A to Isaac Aff., ¶ 17. Defendants, therefore, may obtain information pertaining to plaintiff's communications with recruiters and others, related to job offers and inquiries, searches, and responses, if any, available on her LinkedIn account.
Defendants have not shown, however, that they are entitled to discovery of plaintiff's communications with former colleagues inquiring about her condition, or to all other material on plaintiff's LinkedIn account. WCS, in arguing that plaintiff's “self assessments” in response to inquiries from former co-workers are relevant to her damages claim (Connors Reply Aff., ¶ 11), neither asserts that the disclosure might contradict or conflict with her claims nor otherwise provides a “proper basis for the disclosure.” Pecile, 113 AD3d at 527;see Tapp, 102 AD3d at 620–621. WCS's further argument, that plaintiff's LinkedIn communications are relevant to her claims that her injuries have prevented her from “enjoying the normal fruits of society” and have contributed to “loss of enjoyment of life” (Connors Reply Aff ., ¶ 8), is improperly raised for the first time in reply. See Gumbs, 114 AD3d at 574;Keneally v. 400 Fifth Realty LLC, 100 AD3d 624, 624 (1st Dept 2013); Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562 (1st Dept 1992). Even considering the argument, however, defendants offer no more than “the mere hope of finding relevant evidence,” which is insufficient to warrant such disclosure. McCann, 78 AD3d at 1525. “To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification for requiring the production of every thought she may have reduced to writing.” Rozell v. Ross–Holst, 2006 WL 163142, *3, 2006 U.S. Dist LEXIS 2277, *10–11 (SD N.Y.2006).
While defendants have also demanded access to “all social media sites” used by Del Gallo (see WCS's Notice to Produce, dated April 2, 2013, Ex. H to Connors Aff., ¶ 2), it appears that defendants are not pursuing such demand. In any event, such demand should be denied as a request for an improper fishing expedition. See Auerbach, 30 AD3d at 452. The City, claiming that it is entitled to access plaintiff's “Luminosity” account, also offers nothing to support its entitlement to access what is essentially an online brain game site.
Driving Records
Defendants have demanded authorizations for Del Gallo's and her husband's driving records, including copies of driver's licenses, driver's license applications and license renewal applications, from both the New Jersey Department of Motor Vehicles and the Maryland Motor Vehicle Administration. Del Gallo testified at her deposition that she has had a driver's license since she was 16, currently holds a valid license, and, after she moved from New Jersey to Maryland in December 2010, she transferred her New Jersey license to a Maryland license. Del Gallo Dep., Ex. I to Connors Aff. in Opp., at 25–26, 26–27. She testified that when she transferred her license, she did not remember whether she took a vision test, she did not have to provide any vision records, and that “you just give them your New Jersey valid license and you get a Maryland one.” Id. at 166–167. At her deposition held in August 2012, plaintiff testified that she did not drive at that time, that one of her doctors, Dr. Llinas, told her not to drive, and that she was “very anxious” to drive and hoped to get permission to “at least do some limited driving.” Id. at 178–179. Plaintiff further testified that another of her doctors, Dr. Goldstein, deferred to Dr. Llinas on her neurological issues, but, with respect to her vision issues, would allow her to do some limited driving, on local roads, during the day. Id. at 179–180.
Based on this testimony, defendants contend that the demanded documents, and any information about restrictions on Del Gallo's Maryland and New Jersey licenses, are relevant to her current physical and mental limitations, her loss of enjoyment of life, and the extent of her ability to be self-sufficient. See Gross Aff., ¶ 14; Connors Aff., ¶ 26. WCS contends that, because plaintiff testified that she does not remember whether she took a vision test when she exchanged her New Jersey license for a Maryland license, and Maryland requires a vision test or proof of adequate vision when exchanging a license, “any documentation” submitted by Del Gallo to the Maryland Motor Vehicle Administration to show that she is physically and mentally qualified to drive a car is relevant to her damages claims. Id., ¶¶ 23–25. The City also argues, without citing to any legal authority, that all applicants “are required by law to list any impairments as to their physical ability to drive” (Page Aff., ¶ 28), and if plaintiff's “application reflects that she did not list any limitations, then such will go towards her credibility at the time of trial, and will clearly assist with the defendant's case.”Id.
Defendants, however, offer no evidence that any of the demanded documents exist, other than plaintiff's driver's license, and “[t]his attempt to use document discovery as a means to test whether or not certain unknown documents exist is an impermissible fishing expedition.” Penn Place Operating, Inc. v. Two Penn Plaza Assocs., 215 A.D.2d 231, 231 (1st Dept 1995) ; see Argumedo v.. 303 Tenants Corp., 246 A.D.2d 616 (2d Dept 1998). Nor do defendants show that they made any “attempt to probe this issue” at plaintiff's deposition. Penn Place Operating, Inc., 215 A.D.2d at 231;see Fascaldi v. Fascaldi, 209 A.D.2d 578 (2d Dept 1994) (depositions should be used to ascertain existence of documents before documents demanded).
Contrary to defendants' contentions, there is no testimony or other evidence that an application was required to exchange an out-of-state license for a Maryland license, or that disclosure of any disability was required. Even assuming a vision test was required (see Connors Aff., ¶ 24 n 4), information regarding plaintiff's vision is available, and more appropriately sought, from other sources, including opthamology records already requested. See WCS's Demand for Authorizations, Ex. B to Connors Aff. Defendants thus do not show that the information sought from driving records is likely to lead to relevant evidence or could not be obtained by other means. See Sexter v. Kimmelman, 277 A.D.2d 186, 187 (1st Dept 2000) ; Crazytown Furniture, 150 A.D.2d at 421. With respect to driving records of plaintiff's husband, Michael Ricciutti, and automobile insurance records from Liberty Mutual, defendants make no argument that those records are material and necessary. Plaintiffs accordingly are not required to produce the requested driving and automobile insurance records.
To the contrary, a review of the Maryland Motor Vehicle Administration website indicates that no application is required to transfer a license. See www.mva.maryland.gov/drivers/apply/new-to-maryland.htm.
Additional Issues
Plaintiffs' motion for a protective order with respect to the remaining discovery issues identified in the motion, including “pictures taken at a sister-in-law's pool, bank records regarding payouts, printouts of e-mails from Del Gallo from 2002 to date, credit card payments, a camera used by Mr. Ricciutti on the date of the accident, and the address of plaintiff's brother” (Isaac Aff., at 2), is denied without prejudice to raising those issues at a conference before the special referee assigned to this case. Neither plaintiffs nor defendants have adequately addressed those issues for the court to make a determination. Similarly, to the extent that defendants raise other outstanding discovery issues in their opposition papers, defendants, other than WCS, have not moved for any relief, and the discovery issues raised in their opposition papers also should be brought before the special referee, after good faith efforts to resolve them have been made.
The court has considered defendants' other arguments in opposition to plaintiff's motion, including the City's arguments that the motion should be denied based on procedural defects, and finds them unavailing.
Turning to WCS's cross motion to compel plaintiff to provide discovery, WCS correctly notes that plaintiff has offered no opposition to its demand for authorizations for the current records of John Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; and the current address of Jesse Benitez and Deanna Benitez; and the portion of the motion seeking those items will be granted. The branch of the cross motion seeking authorizations for all obstetrical and gynecological records of Dr. Hoffman and Shady Grove Fertility concerning plaintiff is denied for the reasons discussed above; and the branch of the cross motion seeking plaintiff's LinkedIn records is denied except to the limited extent described above.
For all the above stated reasons, plaintiff's motion is granted in part and denied in part, and WCS's cross motion is granted in part and denied in part, and it is accordingly:
ORDERED that plaintiff's motion for a protective order is granted to the extent that defendants' demands for obstetrical and gynecological records pertaining to plaintiff of Dr. Hoffman and Dr. McClamrock, and of Shady Grove Fertility and Radiology–Ultrasound, are vacated; and defendants demands for driving records of plaintiff and of Michael Ricciutti, and for insurance records from Liberty Mutual, are vacated; and it further,
ORDERED that WCS's cross motion is granted, without opposition, to the extent that plaintiffs are directed to provide, within twenty (20) days of service of a copy of this order with notice of entry, 1) recent HIPPA compliant authorizations for plaintiff's records from John Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; and 2) the last known address(es) of Deanna Benitez and Jesse Benitez; and it is further,
ORDERED that, within twenty (20) days of service of a copy of this order with notice of entry, plaintiff shall produce all postings or other records from her LinkedIn account, reflecting, relating to, referring to, or otherwise concerning any communications with recruiters and any other communications pertaining to employment offers, employment inquiries, and employment searches, and any responses to such offers, inquiries, and searches, since the date of the accident, including any records previously deleted or archived; and it is further,
ORDERED that any remaining discovery issues not addressed in this order are referred to the special referee.