Opinion
162075/14
10-17-2018
Lukasz GOTTWALD P/K/A Dr. Luke, Plaintiff, v. Mark GERAGOS and Geragos & Geragos, a Professional Corporation, Defendants.
Attorney for Plaintiff: Mitchell Silberberg & Knupp LLP, 2 East 49th Street, 30th Floor, New York, New York 10017, By: Jeffrey M. Movit, Esq. Attorney for Defendant Mark Geragos: Quinn Emanuel Urquhart & Sullivan, LLP, 51 Madison Avenue, 22nd Floor, New York, NY 10010, By: Robert L. Raskopf, Esq. Attorney for Defendant Geragos & Geragos, A Professional Corporation: Wilson Elser Moskowitz Edelman & Dicker LLP, 150 E. 42nd Street, New York, NY 10017, By: Jura C. Zibas, Esq.
Attorney for Plaintiff: Mitchell Silberberg & Knupp LLP, 2 East 49th Street, 30th Floor, New York, New York 10017, By: Jeffrey M. Movit, Esq.
Attorney for Defendant Mark Geragos: Quinn Emanuel Urquhart & Sullivan, LLP, 51 Madison Avenue, 22nd Floor, New York, NY 10010, By: Robert L. Raskopf, Esq.
Attorney for Defendant Geragos & Geragos, A Professional Corporation: Wilson Elser Moskowitz Edelman & Dicker LLP, 150 E. 42nd Street, New York, NY 10017, By: Jura C. Zibas, Esq.
Robert R. Reed, J.
In this defamation action, plaintiff Lukasz Gottwald, professionally known as Dr. Luke (plaintiff), moves to compel certain discovery, while defendant Mark Geragos (Geragos) cross-moves for a protective order against that request (together, motion sequence number 005), while Geragos moves separately for an order to compel, co-defendant Geragos & Geragos, a Professional Corporation (G & G) cross-moves for the same relief, and plaintiff cross-moves for a confidentiality order (together, motion sequence number 006). These motions and cross motions are all disposed of in accordance with the following decision.
BACKGROUND
Plaintiff is a music producer and a resident of the State of California. See notice of motion (motion sequence number 005), Movit affirmation, exhibit 1 (complaint), ¶ 6. Geragos is an attorney, licensed in both California and New York, who mainly practices within the music and entertainment businesses. Id. , ¶ 7. G & G, of which Geragos is the sole principal, is a law firm that he operates as a licensed professional corporation, with offices in both California and New York. Id. , ¶ 8.
This action centers on plaintiff's allegation that, on December 2, 2014, Geragos committed a defamatory act against him by publicly claiming on Twitter that he (plaintiff) had raped popular recording artist and entertainer Stefani Germanotta, p/k/a Lady Gaga, and later repeating that statement in music trade magazine TMZ [TMZ]. Plaintiff commenced this action on December 8, 2014 by filing a summons and complaint that sets forth one cause of action for defamation. See notice of motion (motion sequence number 005), exhibit 1. G & G and Geragos filed their respective answers with affirmative defenses on June 30, 2017. Id. , exhibits 2, 3. A request for judicial intervention was filed on February 17, 2015, and a preliminary conference order was entered on June 8, 2017. No note of issue has yet been filed, and this action remains in its discovery phase.
The instant motions and cross motions concern certain of the parties' still outstanding discovery demands. Plaintiff served the following items on Geragos: 1) a notice to admit, dated May 1, 2017; 2) a first document request, dated May 1, 2017; 3) a second document request, dated August 31, 2017; 4) a third document request, dated October 3, 2017; 5) an interrogatory request, dated August 31, 2017; and 6) an insurance policy demand, dated May 1, 2017. See notice of motion (motion sequence number 005), Movit affirmation, exhibits 5, 6, 7, 12, 9, 11. Plaintiff also served the following items on G & G: 1) a first document request, dated May 1, 2017; 2) a second document request, dated August 31, 2017; and 3) an interrogatory request, dated August 31, 2017. Id. , exhibits 6, 8, 10. Finally, prior to a September 28, 2017 compliance conference, plaintiff's counsel circulated an email on September 8, 2017 that contained proposals on the manner in which the various attorneys herein might produce electronically stored documents. Id. , exhibit 13. It, however, does not appear that the parties memorialized these proposals or otherwise adopted them in the compliance conference stipulation that the court signed on September 28, 2017.
Geragos served plaintiff with: 1) a first document request on August 1, 2017; and 2) a second document request on September 15, 2017. See notice of motion (motion sequence number 006), Struble affirmation, exhibits A, B. Plaintiff evidently served a partial response to Geragos's first request on August 22, 2017 (just outside the 20 day limit specified by CPLR 3122 [a] [1] ), and an informal (but timely) response to Geragos's second request on September 22, 2017. Id. ; exhibit E; notice of cross motion (motion sequence number 006, plaintiff), Movit affirmation, exhibit 6.
For its part, G & G served plaintiff with a first document request, dated July 19, 2017. See notice of cross motion (motion sequence number 006, G & G), McGuire affirmation, exhibit 3. Plaintiff served a response to that request on August 8, 2017, inside of the 20 day limit specified by CPLR 3122 (a) (1). Id. ; exhibit 4. All of the motions and cross motions that are currently before the court concern the foregoing demands (motion sequence numbers 005, 006).
Also before the court is the issue of a confidentiality order, for which plaintiff cross-moved (in opposition to Geragos's motion; i.e., motion sequence number 006) pursuant to CPLR 3103. Neither of the defendants' moving papers contained this specific request. Nevertheless, they both addressed the issue by presenting proposed stipulations that contain a confidentiality order. See notice of motion (motion sequence number 006), Struble affirmation, exhibit C; notice of cross motion (motion sequence number 006, G & G), McGuire affirmation, exhibit 7.
DISCUSSION
1. Motion Sequence Number 005
The first bundle of motions before the court is comprised of plaintiff's motion to compel, pursuant to CPLR 3124, and Geragos's cross motion for a protective order, pursuant to CPLR 3103 (together, motion sequence number 005). Plaintiff's motion requests an order to compel against both defendants. Geragos opposed plaintiff's motion, but G & G did not, choosing instead to submit its cross motion for a protective order in response to Geragos's motion to compel (motion sequence number 006). It is uncertain why G & G chose to proceed in this way, and it is certainly possible that a clerical error resulted in G & G filing its cross motion under the incorrect sequence number. In any event, plaintiff's motion to compel (motion sequence number 005) is addressed largely to Geragos, and does not allege that G & G has failed to respond to any specific discovery requests. For the sake of continuity, the court will discuss G & G's motion for a protective order in the second half of this decision.
The first half of the decision will dispose of the two general arguments that plaintiff raised against both defendants, as will be discussed on below.
CPLR 3124 provides that:
"If a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response."
CPLR 3103 provides, in pertinent part, as follows:
"(a) Prevention of abuse. The court may ... on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
Here, plaintiff's motion requests an order to compel responses to all of his discovery demands, and Geragos's cross motion seeks a protective order against complying with any of those demands. The court will consider each item to which those demands relate in turn.
The first branch of plaintiff's motion seeks responses to items is contained in what plaintiff terms his "first set of RFPs" (i.e., his first document request), dated May 1, 2017. Plaintiff specifically seeks responses to requests 3, 14 and 16, and argues that Geragos has waived his right to object to producing this material by failing to serve a timely objection. See plaintiff's mem of law (motion sequence number 005), at 6. Geragos admits to having missed the deadline, but argues that his failure to comply with it is excusable. See defendant's mem of law (motion sequence number 005, Geragos), at 9-11. Plaintiff replies that Geragos's failure in this case was not excusable. See plaintiff's reply mem (motion sequence number 005), at 8-10. After reviewing the relevant law, the court agrees.
CPLR 3122 (a) (1) provides that a party served with a notice or a subpoena for documents to which the party objects must serve a response to the notice or subpoena within 20 days of the date of its service that sets forth the grounds for the party's objections. If the party fails to serve such a response within 20 days, the party will be deemed to have waived his/her right to object, unless the court exercises its discretion to excuse that failure. See, e.g., Holy Spirit Assn. for Unification of World Christianity v. New York Prop. Ins. Underwriting Assn. , 116 AD2d 787 (3d Dept 1986) ; see also Finn v. Riley , 202 AD2d 880 (3d Dept 1994). However, in making such a determination, the rule in this state is that a "court's review is limited to determining whether the requested material is privileged under CPLR 3101 or the demand is palpably improper." Wilner v. Allstate Ins. Co. , 71 AD3d 155, 168 (2d Dept 2010) (internal citations and quotation marks omitted); see also DG & A Mgt. Servs., LLC v. Securities Indus. Assn. Compliance & Legal Div. , 78 AD3d 1316 (3d Dept 2010). Here, plaintiff served his first document request on Geragos on May 1, 2017, and Geragos did not respond until June 23, 2017, more than a month after the 20 day deadline had expired. See notice of motion (motion sequence number 005), Movit affirmation, exhibit 6, Struble affirmation in opposition, exhibit 1. As a result, the law does, indeed, deem Geragos to have waived his right to object to the contents of plaintiff's first document request. Geragos, nonetheless, raises several opposition arguments.
First, Geragos argues that the court should exercise its discretion to excuse his failure to timely comply with CPLR 3122 because he "had determined to select and work with new counsel, and was in the process of doing so, but had not then hired new counsel." See defendant's mem of law (motion sequence number 005, Geragos), at 10. The court is not moved by this assertion. Geragos was represented at the time that plaintiff served his first document request, and is himself an attorney admitted to practice in New York. As such, Geragos was aware of the need to comply with CPLR 3122, and was both capable of, and professionally responsible for, contacting plaintiff's counsel for an extension of time to do so (if that was necessary), either himself or through his then counsel. Because there is no evident excuse for Geragos's failure to either comply with the statute or to request an extension, the court declines to exercise its discretion Geragos's favor.
Next, Geragos argues that the court should issue a protective order to excuse him from responding to items number 3, 14 and 16 in plaintiff's first document request on the grounds that they are "overly broad." See defendant's mem of law (motion sequence number 005, Geragos), at 11-15. As the court previously observed, however, when a party fails to comply with the 20-day objection rule in CPLR 3122, "the court's review is limited to determining whether the requested material is privileged under CPLR 3101 or the demand is palpably improper." Wilner v. Allstate Ins. Co. , 71 AD3d at 168. Here, the disputed items in the first document request seek: 1) "all documents and ESI [i.e., electronically stored information] relating to the Twitter account with the username ‘@markgeragos’ " (item 3); 2) "all documents and ESI relating to the ownership and operation of [G & G]" (item 14); and 3) "all documents and ESI relating to any agreements between you, on the one hand, and [G & G], on the other hand" (item 16). See notice of motion (motion sequence number 005), Movit affirmation, exhibit 6. Geragos does not assert that any of the requests seek privileged material, but he does assert that they are "palpably improper." See defendant's mem of law (motion sequence number 005, Geragos), at 11-15. Plaintiff replies that Geragos has failed to meet the legal threshold to establish that any of the three disputed requests is "palpably improper." See plaintiff's reply mem (motion sequence number 005), at 10-12. The court agrees.
In New York, a document request "will be found proper as long as it is sufficiently specific to apprise the defendant of the category of documents which must be produced and is relevant to the plaintiff's cause of action." During v. City of New Rochelle, NY , 55 AD3d 533, 534 (2d Dept 2008) ; see also Fausto v. City of New York , 17 AD3d 520, 522 (2d Dept 2005). Geragos's opposition arguments do not contest that the documents sought in items 3, 14 and 16 are relevant, and plaintiff's reply arguments do assert that these documents are, indeed, relevant to his defamation claim and/or to the extent of liability that each defendant herein might be found to bear for that claim. The court, thus, deems that Geragos has conceded the relevancy issue. The court also notes, however, that neither parties' briefs directly discuss whether the disputed discovery items are "sufficiently specific to apprise the defendant of the category of documents which must be produced." Geragos merely argues that these requests "will invariably sweep up material having nothing to do with" plaintiff's defamation claim, which is merely a restatement of his argument that the requests are "overly broad." Plaintiff's reply papers do not address the issue at all, other than to note that Geragos has not explained the extent of the "purported burden" of complying with the document production. The court believes that the parties' contentions both miss the mark, however, and refuses to chase the "red herring" of Geragos's argument regarding the feasibility of enforcing any improvidently worded request for "all documents."
The governing legal standard herein simply requires that a discovery request be "sufficiently specific to apprise the defendant of the category of documents which must be produced." During v. City of New Rochelle, NY , 55 AD3d at 534. Plaintiff's requested items meet this standard: 1) item 3 seeks any "documents and other information concerning Geragos's Twitter account" that relate to his alleged act of defamation on December 2, 2014 ; 2) item 14 seeks "documents and other information concerning the ownership and operation of G & G" at the time of Geragos's alleged act of defamation on December 2, 2014 ; and 3) item 16 seeks documents and other information concerning and agreements between Geragos and G & G" that were in effect at the time of Geragos's alleged act of defamation on December 2, 2014 . Because the complaint makes it very clear that plaintiff's only claim in this action concerns Geragos's alleged act of defamation on December 2, 2014 , it is equally clear that plaintiff's document requests also relate only to that claim, no matter that they are couched in broadly worded boilerplate language. Geragos has not advanced any reasonable rationale under which the disputed discovery items might be seen to relate to any other claim. Therefore, the court rejects Geragos's "palpably improper" argument. Consequently, because Geragos has waived his right to object to the production of the three disputed items contained in plaintiff's first document request, the court finds that plaintiff is entitled to an order compelling Geragos to respond to these requests, pursuant to CPLR 3124. Accordingly, the court grants plaintiff's motion to the extent that it seeks an order to compel Geragos to respond to the requests set forth in items 3, 14 and 16 in plaintiff's first document requests, and denies Geragos's cross motion to the extent that it seeks a protective order against complying with these requests.
The second branch of plaintiff's motion argues that Geragos should be compelled to respond to his August 31, 2017 interrogatory demand. See plaintiff's mem of law (motion sequence number 005), at 6-11. Geragos responds that the court should deny plaintiff's motion, because his 88 interrogatory requests are "unduly burdensome in number and improper in form." See Geragos mem of law (motion sequence number 005), at 22-29. Plaintiff's reply includes a number of rebuttal arguments, but also appears to concede that Geragos has made sufficient responses to 51 of his interrogatories so far, since his reply arguments only demand that Geragos now respond to 37 of his original 88 requests (specifically, numbers 8, 13-16, 21, 22, 24, 25, 46-48 and 64-88). See plaintiff's reply mem (motion sequence number 005), at 1-8. Concomitantly, Geragos's cross motion seeks a protective order, pursuant to CPLR 3103 and 2215, that he not be required respond to these 37 interrogatory requests. The court will consider each request in turn.
First, Geragos contends that he should not have to respond to interrogatories 8, 14, 16 and 24 because they each contain an improper request that he "identify all the facts" that support certain of his affirmative defenses. See Geragos mem of law (motion sequence number 005), at 23-27. Geragos cites a quantity of appellate case law for the proposition that "interrogatories which consist of matters of law are improper and should be stricken ... because they implicate legal matter as well as privileged matter." Id. at 24. Plaintiff replies that the disputed interrogatories "merely seek to learn the factual support (if any) for [Geragos's] accusations ... and ... do not call for [Geragos] to make any legal arguments whatsoever." See plaintiff's reply mem (motion sequence number 005), at 2. The court finds that Geragos's argument misses the mark, and cannot credit it. In the court's assessment, Geragos has mischaracterized the appellate precedent. It is true that appellate courts have disallowed interrogatories which requested a defendant "to state the facts he relied upon in support of his denials and his special or affirmative defenses" where the "interrogatory was vague and overbroad, and sought privileged matter." Law Offs. of Binder & Binder, P.C. v. O'Shea , 44 AD3d 626, 626 (2d Dept 2007). Nonetheless, it is not true, as Geragos implies, that New York law deems all such interrogatories to be "vague and overbroad, and to seek privileged matter." In Medaris v. Vosburgh (93 AD2d 882, 882-883 [2d Dept 1983] ), the Appellate Division, Second Department, observed that "the purpose of interrogatories is distinct from that of a bill of particulars" because "interrogatories seek evidentiary matter" whereas a bill of particulars merely seeks "to amplify the pleadings, limit the proof and prevent surprise at the trial." 93 AD2d at 882-883 (internal citations and quotation marks omitted). The Second Department then noted that it routinely upholds the propriety of such interrogatories, even over "the argument ... that [they] improperly sought expert ... opinion, rather than evidentiary material." Id. at 883.
The operative point, then, is that statements which disclose the factual basis for a parties' claim are discoverable, unless those statements are privileged. In New Line Stone Co., Inc. v. BCRE Servs. LLC (89 AD3d 581 [1st Dept 2011] ), the Appellate Division, First Department, made it clear that the party who objects to an interrogatory requesting facts in support of an affirmative defense bears the burden of establishing that the information sought is, in fact, privileged. Here, Geragos's opposition papers are devoid of any argument that plaintiff's interrogatories 8, 14, 16 and 24 include privileged material. Therefore, the court rejects Geragos's argument because he has failed to meet his burden of proof. Moreover, plaintiff's argument that the subject interrogatories "seek to discover only facts" appears to be accurate, since each of those interrogatories asks what facts Geragos relied on when he stated that plaintiff had raped Lady Gaga. Such questions do not call for any legal conclusion, but only for a factual response. Therefore, the court grants plaintiff's motion to the extent that it seeks an order to compel Geragos to respond to interrogatories 8, 14, 16 and 24, and consequently also denies Geragos's cross motion to the extent that it seeks a protective order to prevent him from furnishing these responses.
Geragos next contends that he should not have to respond to interrogatories 13, 15 and 46-48 because they "improperly request that [he] set forth his contentions in this case." See Geragos mem of law (motion sequence number 005), at 27-28. Those interrogatories seek answers to the following questions: 1) "do you contend that [plaintiff] raped ... [Lady Gaga]?" (No.13); 2) "do you contend that [plaintiff] sexually assaulted ... [Lady Gaga]?" (# 15); and 3) "do you contend that you took any steps to determine [whether plaintiff raped Lady Gaga, whether your Tweets on this subject were accurate, or whether your assertion on this subject to TMZ subject was accurate]?" (# 46-48). See notice of motion (motion sequence number 005), Movit affirmation, exhibit 9. Geragos cites the memorandum decision of the Appellate Division, First Department in Blitz v. Guardian Life Ins. Co. of Am. (99 AD2d 404 [1st Dept 1984] ), for the proposition that "[q]uestions addressed ... to what [plaintiff] understood her contentions to be in the lawsuit, i.e., matters of law and interpretation of the pleading ... should not be answered." Plaintiff replies that "defendants should not be allowed to evade their obligation to answer interrogatories regarding the factual basis ... for their defamatory ... assertions." See plaintiff's reply mem (motion sequence number 005), at 1-3. In the court's opinion, Geragos's argument distorts the meaning of the word "contention" as it is used in the Blitz decision. In that case, the First Department explicitly defined its usage of the term "contention" to refer to "matters of law and interpretation of the pleading." The First Department plainly did not use that word in its normal everyday English context: i.e., to refer to a factual assertion as a "contention." Regarding that latter, more common usage, the plaintiff cited the decision of the Appellate Division, First Department, in New Line Stone Co., Inc. v. BCRE Servs. LLC (89 AD3d at 581 ), which held that "interrogator[ies] ... which sought the facts underlying defendants' ... affirmative defenses and ... counterclaims" were proper and had to be answered. Because interrogatories 13, 15 and 46-48 seek factual responses rather than opinions about matters of law and interpretation of the pleading, the court finds that they, too, are proper, and that Geragos must answer them. Accordingly, the court grants plaintiff's motion to the extent that it seeks an order to compel Geragos to provide answers to these interrogatories, and denies Geragos's cross motion to the extent that it seeks a protective order exempting him from furnishing such answers.
Geragos next contends that he should not have to respond to interrogatories 21-22 and 25 because they are "more appropriately the subject of document discovery and deposition testimony." See Geragos mem of law (motion sequence number 005), at 28-29. Those interrogatories request: 1) "all communications on December 2, 2014 between you ... and ... TMZ ... regarding [Lady Gaga]" (# 21); 2) "all communications on December 2, 2014 between you ... and ... TMZ ... regarding [plaintiff]" (# 22); and 3) "all press statements transmitted by you to any media outlet regarding plaintiff] on one hand and [Lady Gaga] on the other hand" (# 25). See notice of motion (motion sequence number 005), Movit affirmation, exhibit 9. Geragos cites the memorandum decision of the Appellate Division, First Department, in Nankof v. ARA Servs. (96 AD2d 493 [1st Dept 1983] ) to support his contention that New York courts will reject interrogatories that are document requests in disguise, as such interrogatories impose an undue burden on one party to catalogue documents for another. See Geragos mem of law (motion sequence number 005), at 29. Geragos then asserts that, although "[plaintiff] claims now that the requests seek verbal communications, ... he did not formulate the interrogatories that way." Id. Plaintiff replies that Geragos "should be required to answer interrogatories about [his] communication with the media." See plaintiff's reply mem (motion sequence number 005), at 3-6. Plaintiff specifically contends that: 1) without a court order, some of Geragos's communications with the press may be lost through spoliation, which is of concern to plaintiff because Geragos allegedly has a history of having done this in other litigation; 2) any communications with the press which Geragos made "off the record" would not be "publicly available," as Geragos claims; 3) the subject interrogatories seek information about both verbal and written communication with the press, despite Geragos's contention; and 4) G & G has already provided short acceptable answers to these interrogatories, and there is no reason that Geragos cannot do the same. Id. The Nankof decision, though, addressed interrogatories that concealed a "blunderbuss" or "fishing expedition" document production request, which, the First Department found, failed "to identify the specific documents or categories of documents sought." 96 AD2d at 494. Here, by contrast, the subject interrogatories do meet the "sufficient particularity" standard that the Court deemed to have been violated in Nankof . Interrogatories 21 and 22 seek only those communications that Geragos made "on December 2, 2014" concerning two specifically identified individuals. Interrogatory 25 seeks all "press statements" released by Geragos concerning both plaintiff and Lady Gaga, in tandem. The court finds that the former interrogatories are "sufficiently particular" to pass muster, while furnishing an answer to the latter is highly unlikely to involve so large a document identification as to constitute a significant "burden" to Geragos. Therefore, the court rejects Geragos's argument. Accordingly, the court grants plaintiff's motion to the extent that it seeks an order to compel Geragos to provide answers to interrogatories 21, 22 and 25, and denies Geragos's cross motion to the extent that it seeks a protective order exempting him from furnishing such answers.
Geragos finally contends that he should not have to respond to interrogatories 64-88. These identically worded interrogatories each request Geragos to "describe with specificity all facts supporting" each of Geragos's 28 affirmative defenses. See notice of motion (motion sequence number 005), Movit affirmation, exhibit 9. Geragos objects to these interrogatories for the same reasons that he objected to interrogatories 8, 14, 16 and 24, i.e., because they call for "conclusions of law" regarding his affirmative defenses. See Geragos mem of law (motion sequence number 005), at 23-27. The court has already rejected Geragos's argument, since controlling appellate case law holds that statements which disclose the factual basis for a parties' claim are discoverable, unless those statements are privileged. Medaris v. Vosburgh , 93 AD2d at 882-883. Here, Geragos does not argue the issue of privilege with respect to interrogatories 64-88. Therefore, the court rejects his argument for the same reasons as stated earlier in this decision. Accordingly, the court grants plaintiff's motion to the extent that it seeks an order to compel Geragos to provide answers to interrogatories 64-88, and denies Geragos's cross motion to the extent that it seeks a protective order exempting him from furnishing such answers.
The third branch of plaintiff's motion argues that "Geragos should produce his underlying insurance policies" pursuant to plaintiff's May 1, 2017 insurance policy demand. See plaintiff's mem of law (motion sequence number 003), at 11-12. Plaintiff acknowledges that Geragos has produced two such policies to date: 1) State Farm Umbrella Policy No. 71-PH-7360-3 (the umbrella policy); and 2) Travelers Policy No. 680-0C356273-14-42. Id. Plaintiff points out, however, that the umbrella policy makes plain that, in order for it to be effective, Geragos was also required to purchase certain other "underlying insurance coverage," and that Geragos has so far not produced such "underlying insurance policies." Id. Plaintiff contends that Geragos is mandated to produce any such "underlying insurance policies," citing CPLR 3101 (f), which provides as follows:
"(f) Contents of insurance agreement. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purpose of this subdivision, an application for insurance shall not be treated as part of an insurance agreement."
CPLR 3101. In Spotlight Co. v. Imperial Equities Co. (107 Misc 2d 124 [App Term, 1st Dept 1981] ), the Appellate Term, First Department, observed that:
"The purpose behind passage of section 3101(f) was to accelerate settlement of claims by affording the plaintiff knowledge of the limits of defendant's liability policy. That this was the policy of section 3101(f) is borne out by that statute's legislative history. The memorandum of the bill states:
"The purpose of the bill is to permit the plaintiff in an action to obtain information regarding the policy of insurance as to coverage and limits of liability."
107 Misc 2d at 125-126 (internal citations omitted).
The case law that followed the enactment of CPLR 3101 (f) has promulgated the rule that "[d]iscovery pursuant to CPLR 3101 (f) is not limited to production of the insurance policy; a plaintiff is also entitled to discover those matters bearing upon the existence and scope of coverage." PCB Piezotronics v. Change , 179 AD2d 1089, 1089 (4th Dept 1992) ; see also Sullivan v. Brooklyn-Caledonian Hosp. , 213 AD2d 474 (2d Dept 1995). Plaintiff essentially argues that, until Geragos produces the "underlying insurance policies" mandated by the umbrella policy, he will have incomplete knowledge of the existence and scope of Geragos's coverage under the umbrella policy. Geragos responds that he does not need to provide copies of his "underlying insurance policies" -- because the terms of the umbrella policy do not require him to purchase "underlying insurance" against defamation claims. See defendant's mem of law (motion sequence number 005), at 19-21. In reply, plaintiff disagrees with Geragos's reading of the terms of that policy. See plaintiff's reply mem (motion sequence number 005), at 14. The court, though, finds that Geragos's reading of the umbrella policy is correct. The "definitions" section of the umbrella policy plainly categorizes defamation claims as a class of "personal injuries," and excludes them from the classification of "bodily injuries." See Struble affirmation in opposition (motion sequence number 005), exhibit 8 at 1-2. The "coverages" section of the umbrella policy refers to the statement set forth on the policy's "declarations" page as to what constitutes "required underlying insurance." Id. That declarations page plainly states that "required underlying insurance" is only required for coverage of "passenger bodily injuries" under "recreational motor vehicle liability." Id. , exhibit 7. There is simply no mention of "personal injuries" (including defamation) on the "required underlying insurance" portion of the umbrella policy's declarations page. Id. As a result, it appears that compelling Geragos to produce copies of his "underlying insurance policies" for the umbrella policy is not likely to afford plaintiff any new knowledge of the "existence and scope of coverage" for his defamation claim under the umbrella policy, since that policy does not require Geragos to carry "underlying insurance" against such claims. Accordingly, the court denies plaintiff's motion to the extent that it seeks an order to compel Geragos to produce his "underlying insurance policies," and grants Geragos's cross motion to the extent that it seeks an order protecting him against being required to produce this evidence.
The fourth branch of plaintiff's motion argues that "each defendant should be compelled to produce documents in its own possession, regardless of the other defendant's production." See plaintiff's mem of law (motion sequence number 003), at 12-13. Geragos responds that "the court should deny [plaintiff's] request for each defendant to assume document production obligations for the other." See defendant's mem of law (motion sequence number 005), at 16-19. Plaintiff replies that "each defendant should be required to produce the documents in its own possession, custody or control, regardless of whether certain of those documents are also in its co-defendant's possession, custody or control." See plaintiff's reply mem, at 12-13. In support of this contention, plaintiff cites the portion of CPLR 3120 that provides that:
"1. After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum:
"(i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person served ; ..."
CPLR 3120 (1) (i) (emphasis added). Plaintiff's argument, however, does not specify what items, if any, of documentary evidence that one of the co-defendants herein is allegedly withholding because the other co-defendant has allegedly produced it. In other words, his argument appears to be based on a non-existent, or at least non-specified, injury. The court finds that CPLR 3120 speaks for itself, and that all of the parties to this action are bound to abide by it. Therefore, the court rejects plaintiff's argument and Geragos's opposition to it on the ground that both are irrelevant.
The final branch of plaintiff's motion argues that "the court should order [the parties] to produce their responsive [ESI] with metadata." See plaintiff's mem of law (motion sequence number 005), at 13-14. Geragos responds that plaintiff's request for metadata is moot, since plaintiff's September 8, 2017 email proposed that the parties produce their respective document discovery responses in the form of "TIFF images," while his reply papers state that plaintiff "does not object if all parties produce their documents in PDF format," and Geragos has already presented his document production in that latter format. See defendant's mem of law (motion sequence number 005), at 15-16. Plaintiff replies that "both defendants should be required to produce their documents with specified fields of metadata intact," but notes that only G & G has objected to providing a document discovery response with metadata. See plaintiff's reply mem (motion sequence number 005), at 13-14. As the court previously observed, G & G did not respond to plaintiff's motion. G & G, nevertheless, did address this argument in its cross motion, which will be discussed below. Therefore, the court declines to address that argument here, and finds that the fifth branch of plaintiff's motion should be denied as moot with respect to Geragos. Accordingly, in conclusion, the court grants and denies plaintiff's motion and Geragos's cross motion to the extent set forth above.
Motion Sequence Number 006
The second bundle of motions before the court is comprised of: 1) Geragos's motion for an order to compel; 2) G & G's cross motion to compel; and 3) plaintiff's cross motion for a confidentiality order (together, motion sequence number 006). The court will address them each in turn.
1. Geragos's Motion
The first branch of Geragos's motion seeks an order compelling plaintiff to provide responses to certain of the demands set forth in his two document requests; specifically: 1) items 2-10, 12-13, 20-44, 46-50 and 52-54 in his first document request, dated August 1, 2017; and 2) items 2-21, 23-28, 30 and 32 in his second document request, dated September 15, 2017. See notice of motion (motion sequence number 006), Struble affirmation, exhibits A, B. Plaintiff made an untimely partial response to the first demand on August 22, 2017, and a timely, albeit informal, response to the second demand. Id. , exhibit E. Geragos deemed both responses to be inadequate, and filed the instant motion to compel, pursuant to CPLR 3124. Because plaintiff's response to the first request was untimely, the court's review of Geragos's motion is limited in the same way as its review of plaintiff's motion was. See Wilner v. Allstate Ins. Co. , 71 AD3d at 168 (a "court's review is limited to determining whether the requested material is privileged under CPLR 3101 or the demand is palpably improper." [internal quotation marks and citations omitted] ). Because plaintiff's response to the second request was timely, however, the court may instead "inquire into the propriety of the discovery requests," and may only deny a motion to compel "where the demands ... seek information that is irrelevant, overly broad, or burdensome." See Pesce v. Fernandez , 144 AD3d 653, 655 (2d Dept 2016) ; Aetna Ins. Co. v. Mirisola , 167 AD2d 270, 271 (1st Dept 1990).
The court notes that plaintiff's opposition to Geragos's motion and G & G's cross motion did not seek a protective order, pursuant to CPLR 3103, but merely raised opposition arguments. The reference in plaintiff's papers to a "protective order" actually appears to concern his cross motion for a confidentiality order, which will be discussed below.
Here, since Geragos's moving papers categorize the disputed discovery items in the first request by subject matter (rather than numerically), and plaintiff's opposition follows that format as well, the court will likewise do so for the sake of convenience. Geragos begins by arguing that plaintiff should provide responses to items 2-7, 9, 10 and 12 in his first document request. See defendant's mem of law (motion sequence number 006), at 10-13. These items, which Geragos characterizes as requests for "documents concerning the statements at issue and [plaintiff's] relationship with Lady Gaga," ask plaintiff to produce the following: 1) "all documents containing ... statements by you ... concerning the alleged defamatory statements" (# 2); 2) "all documents containing ... statements by you ... concerning sexual misconduct by you toward any person" (# 3); 3) "all communication between you ... on the one hand, and [Geragos] on the other, concerning the alleged defamatory statements" (# 4); 4) "all communication between you ... on the one hand, and [G & G] on the other, concerning the alleged defamatory statements" (# 5); 5) "all communication between you ... on the one hand, and Sitrick on the other, concerning Lady Gaga" (# 6); 6) "all communication between you ... on the one hand, and Sitrick on the other, concerning the alleged defamatory statements" (# 7); 7) "all documents containing ... statements by you ... concerning Lady Gaga" (# 9); 8) "all documents containing ... communications between you and Lady Gaga... concerning [the alleged defamatory statements, sexual misconduct by plaintiff, Geragos, Kesha Sebert, and any meetings between plaintiff and Lady Gaga]" (# 10); and 9) "all documents ... relating to any meetings between you and Lady Gaga" (# 12). See notice of motion (motion sequence number 006), exhibit A, at 8-9. Geragos argues that the foregoing items should be disclosed because they will provide evidence of "a central issue in this case; namely, the truth or falsity of [Geragos's] Twitter post, which ... by necessity implicates the topic of [plaintiff's] relationship with Lady Gaga." See defendant's mem of law (motion sequence number 006), at 10-13. Geragos cites appellate case law which recites the rule that those items of evidence which are relevant to the allegations of a complaint are subject to discovery. Luppino v. O'Brien , 59 AD3d 991, 992 (4th Dept 2009) ; citing Kern v. City of Rochester , 261 AD2d 904, 905 (4th Dept 1999]. Plaintiff responds that Geragos's requests are improper, however, because some of them constitute "a fishing expedition into irrelevant subjects," and others constitute "an impermissible attempt by Geragos to fish for claims against [plaintiff]" in this action. See plaintiff's mem of law (motion sequence number 006), at 11-14. Geragos's reply papers contain a number of responsive arguments to these points. See defendant's reply mem of law (motion sequence number 006), at 3-10.
Nonparty Michael Sitrick, the director of the nonparty Sitrick Group, is alleged to be a "high profile crisis management expert" that plaintiff retained in connection with other litigation. See defendant's mem of law (motion sequence number 006), at 7.
Nonparty Kesha Rose Sebert, p/k/a Ke$ha, is another popular recording artist and entertainer who claims that plaintiff raped her, and against whom plaintiff has commenced separate defamation litigation. See defendant's mem of law (motion sequence number 006), at 5-6.
The court begins its analysis with the holding of the Appellate Division, First Department, in Rivera v. NYP Holdings Inc. (63 AD3d 469 [1st Dept 2009] ), that:
"Full disclosure is required of ‘all matter material and necessary’ to the defense of an action ( CPLR 3101[a] ), and the words ‘material and necessary’ are ‘to be interpreted liberally to require disclosure ... of any facts bearing on the controversy.’ Defendants are entitled to the discovery they seek in their efforts both to establish their defense of truth to plaintiff's defamation claims, and to defend against plaintiff's assertion of damage to his reputation. Moreover, defendants are entitled to the opportunity to demonstrate the truth of the [allegedly defamatory material] as a whole ..."
63 AD3d at 469 (internal citations omitted). Thereafter, the Court of Appeals held as follows:
"We conclude that the ‘material and necessary’ standard adopted by the First and Fourth Departments is the appropriate one and is in keeping with this state's policy of liberal discovery. The words ‘material and necessary’ as used in section 3101 must ‘be 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.’ "
Matter of Kapon v. Koch , 23 NY3d 32, 37-38 (2014) (internal citation omitted). These holdings show that New York law observes a very liberal discovery policy as regards to motions to compel. Here, plaintiff nevertheless argues that items 6, 9, 10 and 12 in Geragos's first document request are improper, because they constitute "a fishing expedition into irrelevant subjects." See plaintiff's mem of law (motion sequence number 006), at 13-14. Plaintiff's opposition papers disclose that these "irrelevant subjects" consist primarily of the subject matter of plaintiff's other defamation litigation against Ke$ha, who claimed therein that plaintiff raped her. Id. Plaintiff argues that this matter is "utterly irrelevant to the instant litigation." Id. at 11-12. Geragos replies that these items are relevant because they actually seek communications between himself and Lady Gaga (or concerning Lady Gaga), rather than having anything to do with Ke$ha, and because they are designed to shed light on two central issues in this case: i.e, the truth or falsity of his allegedly defamatory Tweets, and the nature of plaintiff's professional reputation (see defendant's reply mem of law (motion sequence number 006), at 7-11). Geragos cites appellate case law that states the rule that items of evidence which are relevant to the allegations of a complaint are subject to discovery. Luppino v. O'Brien , 59 AD3d at 992 ; citing Kern v. City of Rochester , 261 AD2d at 905. Geragos's legal analysis on this point is persuasive.
The proponent of a defamation claim must demonstrate, among other things, that the defendant made a "false statement" which caused "special damages" in the form of an injury to the plaintiff's reputation. See e.g. LeBlanc v. Skinner , 103 AD3d 202 (2d Dept 2012). Here, the instant complaint obviously alleges that Geragos's tweets constituted "false statements." Geragos asserts that items 6, 9, 10 and 12 in his first document request, which concern plaintiff's interaction with Lady Gaga, are relevant to the veracity of Geragos's tweets, which concern plaintiff's relations with Lady Gaga. These items fall within the broad category of discoverable evidence "of any facts bearing on the controversy." Rivera v. NYP Holdings Inc, 63 AD3d at 469 (internal quotation marks and citation omotted). Therefore, the court rejects plaintiff's opposition argument. Accordingly, the court grants Geragos's motion to the extent that it seeks an order to compel plaintiff to provide responses to items 6, 9, 10 and 12 in his August 1, 2017 document request.
The court notes that plaintiff's opposition papers incorrectly identify Geragos's discovery items 6, 9, 10 and 12 as having to do with plaintiff's litigation against Ke$ha. Apart from item 10, which makes multiple requests, these items do not concern the Ke$ha litigation. The discovery requests that relate to plaintiff's litigation against Ke$ha are actually set forth in items 3, 8, 10 and 13, and will be discussed below.
Plaintiff also argues that items 2, 4, 5 and 7 are improper requests because they constitute "an impermissible attempt by Geragos to fish for claims against [plaintiff]" in this action, which does not, as least as of yet, involve any counterclaims. See plaintiff's mem of law (motion sequence number 006), at 13-14. Geragos replies that this is a "ludicrous strawman" argument. See defendant's reply mem of law (motion sequence number 006), at 8-9. The court agrees. These disputed items all seek "documents" or "communications" related to Geragos's "allegedly defamatory statements." As such, they plainly seek evidence "which is relevant to the allegations [of the] complaint," and are subject to discovery. Luppino v. O'Brien , 59 AD3d at 992. Therefore, the court again rejects plaintiff's opposition argument. Accordingly, the court grants Geragos's motion to the extent that it seeks an order to compel plaintiff to provide responses to items 2, 4, 5 and 7 in his August 1, 2017 document request.
Geragos next argues that plaintiff should provide responses to items 3, 8, 10 and 13 in his first document request, which he characterizes as requests for "documents concerning [plaintiff's] reputation for sexual misconduct." See defendant's mem of law (motion sequence number 006), at 10-13. These items seek: 1) "all documents containing ... statements by you ... concerning sexual misconduct by you toward any person" (# 3); 2) "all communications between you ... on the one hand, and Sitrick, on the other, concerning ... sexual misconduct by you toward any person" (# 8); 3) "all documents containing ... communications between you and Lady Gaga... concerning [the alleged defamatory statements, sexual misconduct by plaintiff, Geragos, Kesha Sebert, and any meetings between plaintiff and Lady Gaga]" (# 10); and 4) "all documents that describe or refer to sexual misconduct by you toward any female" (# 13). See notice of motion (motion sequence number 006), exhibit A, at 8-9. Plaintiff argues that "New York law prohibits discovery into specific prior acts as purported evidence of ‘reputation’ or ‘character.’ " See plaintiff's mem of law (motion sequence number 006), at 5-8. Geragos replies that this argument inaccurately characterizes New York law, which recognizes that while such evidence may be found to be inadmissible at trial, it is nevertheless subject to discovery before trial. See defendant's reply mem of law (motion sequence number 006), at 3-6. This appears to be an accurate general statement of the First Department's interpretation of CPLR 3101. In Polygram Holding, Inc. v. Cafaro (42 AD3d 339 [1st Dept 2007] ), the First Department, held that:
"Disclosure should be permitted for all evidence ‘material and necessary’ to the prosecution or defense of an action ( CPLR 3101 ). What constitutes ‘material and necessary’ should be construed liberally to require disclosure of any facts bearing on the controversy which assist by sharpening the issues and reducing delay. ‘The test is one of usefulness and reason.’ Furthermore, ‘[p]retrial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof,’ including material which might be used in cross-examination."
42 AD3d at 340-341 (internal citations omitted). Here, Geragos has presented no factually on-point precedent holding that the statute invariably permits the liberal discovery of "prior acts" evidence of a defamation plaintiff's reputation; however, plaintiff has not presented any case law holding that the statute invariably forbids the discovery of such evidence, either. In this situation, the court opts to err on the side of the liberal discovery policy, since plaintiff retains the right to object to the admissibility of any evidence that Geragos may offer at trial as to his purported reputation for sexual misconduct. Therefore, the court again rejects plaintiff's opposition argument. Accordingly, the court grants Geragos's motion to the extent that it seeks an order to compel plaintiff to provide responses to items 3, 8, 10 and 13 in his August 1, 2017 document request.
The next portion of Geragos's motion concerns items 20-44 in his first document request, all of which seek documentary evidence that was generated during the course of plaintiff's prior defamation litigation with Ke$ha, which appears to have taken place over the course of three or four separate actions in New York and/or Los Angeles. See notice of motion (motion sequence number 006), exhibit A, at 10-12. This portion of Geragos's motion relies on the same argument regarding the permissibility of discovering evidence relating to a defamation plaintiff's reputation that was discussed above. See defendant's mem of law (motion sequence number 006), at 13-17. Plaintiff raises the same opposition arguments to items 20-44 that he did with respect to items 3, 8, 10 and 13. See plaintiff's mem of law (motion sequence number 006), at 5-8. The court has already rejected plaintiff's arguments for the reasons discussed in the previous paragraph. Accordingly, the court restates its rejection of plaintiff's opposition argument, and grants Geragos's motion to the extent that it seeks an order to compel plaintiff to provide responses to items 20-44 in his August 1, 2017 document request.
The next portion of Geragos's motion concerns items 46-50 in his first document request, which concern the types damages that plaintiff alleges to have suffered as a result of Geragos's alleged defamation of him. See notice of motion (motion sequence number 006), exhibit A, at 13. Geragos cites a quantity of off-point case law interpreting CPLR 3101, that discusses New York's general policy in favor of permitting broad discovery, described supra . See defendant's mem of law (motion sequence number 006), at 17-19. Plaintiff responds that "Geragos's requests for ... documents concerning categories of damages ... are baseless," because "they pertain to categories of damages which [plaintiff] ... is not seeking to recover in this action." See plaintiff's mem of law (motion sequence number 006), at 14-18. Geragos's reply papers cite case law that discusses CPLR 3101 discovery of the "damages" element of a defamation claim. See plaintiff's reply mem (motion sequence number 006), at 12-15. Having reviewed that case law itself, the court now finds in favor of Geragos on this issue.
The complaint in this action clearly states that "[Geragos's] assertion is ‘defamatory per se ’ by charging plaintiff directly with a crime, [it] directly injures plaintiff in his profession, and by natural consequences causes plaintiff actual damage." See notice of motion (motion sequence number 006), exhibit D (complaint), ¶ 30 (emphasis added). The law in New York regarding claims of "defamation per se" is as follows: "[p]laintiffs in a defamation action must prove special damages, meaning economic or financial loss, unless they fit within an exception in which damages are presumed, i.e., defamation per se," one of the four classifications of which is "charging plaintiff [ ] with a serious crime." Sharratt v. Hickey , 20 AD3d 734, 745 (3d Dept 2005) ; citing Liberman v. Gelstein , 80 NY2d 429, 434—435 (1992). It is obvious that the allegation that plaintiff committed rape constitutes "charging plaintiff with a serious crime." Thus, plaintiff need not allege or prove "special damages" in this action. Still, even though "the existence of compensatory damages is presumed, the quantum of such damages is not , and the party who made the defamatory statement ... must be permitted to rebut that presumption and disprove the amount of damages sought to be recovered ." Gatz v. Otis Ford , 274 AD2d 449, 450 (2d Dept 2000) (emphasis added). Here, the complaint merely recites that "[p]laintiff has been damaged in an amount to be determined at trial ... and is further entitled to punitive damages in an amount also to be determined at trial." See notice of motion (motion sequence number 006), exhibit D (complaint), ¶ 31. This is a very open-ended allegation regarding compensatory damages. As a result, Geragos is likewise entitled to make a proportionately open-ended inquiry into the nature and amount of damages for which plaintiff is seeking compensation. Accordingly, and in view of New York's liberal discovery policy (discussed above), the court rejects plaintiff's opposition argument, and grants Geragos's motion to the extent that it seeks an order to compel plaintiff to provide responses to items 46-50 in his August 1, 2017 document request.
The next portion of Geragos's motion concerns items 52-54 in his first document request, which seek information regarding plaintiff's income (and/or loss thereof). See notice of motion (motion sequence number 006), exhibit A, at 13. Plaintiff again asserts that these inquiries are improper because he "does not seek any ‘lost profits’ damages." See plaintiff's mem of law (motion sequence number 006), at 18-19. Yet, the second category of "defamation per se" recognized by New York law arises from statements "that tend to injure another in his or her trade, business or profession." Liberman v. Gelstein , 80 NY2d at 435. Plaintiff alleges this same category of defamation per se in his complaint. See notice of motion (motion sequence number 006), exhibit D (complaint), ¶ 30. Because items 52-54 clearly seek evidence regarding plaintiff's alleged loss of income resulting from Geragos's allegedly defamatory statement, Geragos is entitled to inquire into the nature and/or the amount of such lost income, regardless of plaintiff's assertion that such inquiry is improper. Gatz v. Otis Ford , 274 AD2d at 450. If plaintiff wishes to recover for defamation per se at trial, he may have to prove damages resulting from "injury in his or her trade, business or profession," which might well include loss of income. Accordingly, the court rejects plaintiff's opposition argument, and grants Geragos's motion to the extent that it seeks an order to compel plaintiff to provide responses to items 52-54 in his August 1, 2017 document request.
The next branch of Geragos's motion concerns certain items that are contained in his second document request: specifically, numbers 2-10, 15, 18, 21, 23-28, 30 and 32. See defendant's mem of law (motion sequence number 006), at 19-22. Each of the items in the second document request corresponds to a separate numbered paragraph in the complaint, and they seek those documents which support the allegations that are made in that paragraph. See notice of motion (motion sequence number 006), Struble affirmation, exhibits B, D. Geragos argues that plaintiff has failed to fully respond to these requests. See defendant's mem of law (motion sequence number 006), at 19-22. Plaintiff responds that: 1) Geragos's assertion is partially moot, since he has already responded to some of the foregoing requests; 2) that he has also agreed to respond to other of the requests; and 3) that the final requests are improper. See plaintiff's mem of law (motion sequence number 006), at 19-23. Geragos's reply papers repeat his argument that, to date, plaintiff's response to the second document request is insufficient. See defendant's reply mem (motion sequence number 006), at 10-12. The court must then review plaintiff's response.
Plaintiff first argues that he has "already produced sufficient documents responsive to requests 10-14, 16, 19-20 and 30," and has also annexed a copy of this response - totaling 44 pages of internet printouts - to his own cross moving papers. See plaintiff's mem of law (motion sequence number 006), at 19-21; notice of cross motion (motion sequence number 006), Movit affirmation, exhibit 6. Geragos replies that "[plaintiff's] production ... does not excuse his obligation to produce documents he will use at trial." See defendant's reply mem (motion sequence number 006), at 10-11. But Geragos does not offer any legal basis for this argument. Geragos also does not assert that plaintiff's 44 page production was an inadequate response to requests 10-14, 16, 19-20 and 30. Therefore, the court rejects Geragos's argument, and denies his motion to the extent that it seeks an order to compel plaintiff to respond to items 10-14, 16, 19-20 and 30 in his second document request, dated September 15, 2017.
Plaintiff next argues that he has already "agreed to produce documents responsive to requests 17, 21, 24, 27, 28 and 32." See plaintiff's mem of law (motion sequence number 006), at 21. Geragos replies that plaintiff "fails to show mootness to" these requests. See defendant's reply mem (motion sequence number 006), at 11. The court agrees. Plaintiff's statement that he has agreed that he will provide responses to these items in the future is, indeed, an admission that he has not provided responses to them to date, and has therefore, failed to comply with this portion of Geragos's second document request. Therefore, the court grants Geragos's motion to the extent that it seeks an order to compel plaintiff to respond to items 17, 21, 24, 27, 28 and 32 in his second document request, dated September 15, 2017.
Plaintiff finally argues that he should not have to provide documentary responses to items: 1) 2-7, 9, 15 and 18, because they "relate to background allegations"; 2) 25-26, because they "raise purely legal issues"; or 3) 5, 8 or 23, because they "are not in dispute." See plaintiff's mem of law (motion sequence number 006), at 21-23. Geragos replies that plaintiff's assertions about the foregoing responses are "wrong." See defendant's reply mem (motion sequence number 006), at 11-12. The court again agrees. Having reviewed the disputed items, the court notes that each of them requests documents that support a particular allegation contained in a particular paragraph of the complaint. See notice of motion (motion sequence number 006), Struble affirmation, exhibits B, D. Therefore, the court finds that plaintiff's characterizations of these disputed items into three categories (i.e., "background allegations," "purely legal" and "undisputed") is inaccurate because it is belied by the language of Geragos's demand notice. The court also reiterates the rule that items of evidence which are "relevant to the allegations of [a] complaint" are subject to discovery. Luppino v. O'Brien , 59 AD3d at 992 ; citing Kern v. City of Rochester , 261 AD2d at 905. Therefore, the court finds that these disputed items, too, are subject to discovery. Accordingly, the court grants Geragos's motion to the extent that it seeks an order to compel plaintiff to respond to items 2-9, 15, 18, 23 and 25-26 in his second document request, dated September 15, 2017.
The final portion of Geragos's motion, which concerns a proposed confidentiality order, will be discussed at the end of this decision.
2. G & G's Cross Motion
As was previously mentioned, G & G did not submit opposition to plaintiff's motion to compel (motion sequence number 005). But G & G did submit a cross motion to Geragos's motion to compel (motion sequence number 006) which does not oppose Geragos's motion but instead seeks an order to compel against plaintiff (which plaintiff opposes). The court will dispose of that cross motion here, although it would have been proper for G & G to make its request in opposition to plaintiff's motion. Interestingly, plaintiff's original motion to compel did not allege that G & G had failed to respond to any specific document requests, and merely raised two general arguments which implicated G & G, and which the court rejected above. In any event, this portion of the decision is confined to G & G's motion to compel against plaintiff, and plaintiff's opposition thereto (motion sequence number 006).
At this point, it would be well to recall that G & G served its document request on plaintiff on July 19, 2017, and that plaintiff served a response to that request on August 8, 2017. See notice of cross motion (motion sequence number 006, G & G), McGuire affirmation, exhibits 3, 4. Plaintiff's response was timely because it fell within the 20 day rule specified by CPLR 3122 (a) (1). Nevertheless, G & G deemed plaintiff's response to be insufficient, and its cross motion seeks an order to compel. Because plaintiff's response to G & G's request was timely, however, the court's review of G & G's cross motion may "inquire into the propriety of the discovery requests," and will result in denial only "where the demands ... seek information that is irrelevant, overly broad, or burdensome." See Pesce v. Fernandez , 144 AD3d at 655 ; Aetna Ins. Co. v. Mirisola , 167 AD2d at 271. The court notes that G & G's notice included 31 total document requests, and that its cross motion seeks an order to compel to provide responses to items 3 through 29, which G & G groups into six categories of requests. The court will review each of these categories in turn.
First, G & G argues that plaintiff must provide any "documents related to [his] public figure status," as set forth in requests 3-8, 10 in the July 19, 2017 notice. See defendant's mem of law (motion sequence number 006, G & G), at 5-6. Those items include requests for documents relating to plaintiff's: 1) "public speaking or musical performance" engagements (# 3); 2) "awards and/or recognitions" (# 4); 3) "publications, articles or stories" that mention plaintiff (# 5); 4) "television, radio or movie appearances" (# 6); 5) "press releases" that mention plaintiff (# 7); 6) "licensing agreements" (# 8); and 7) the number of plaintiff's "social media followers" (# 10). See notice of cross motion (motion sequence number 006, G & G), McGuire affirmation, exhibit 3. G & G argues that these documents are necessary to establish whether plaintiff is a "public figure," as that term is used in defamation law jurisprudence, since "public figures" must meet certain evidentiary thresholds in order to prevail on defamation claims. See defendant's mem of law (motion sequence number 006, G & G), at 6. Plaintiff responds that these documents are "overbroad," and seek "irrelevant" material. See plaintiff's mem of law (motion sequence number 006), at 15-17. G & G does not appear to have served any reply papers in further support of its cross motion. Nevertheless, G & G is correct in its assessment of the law. The Court of Appeals recognizes that:
"... the US Constitution's First Amendment bars a public figure from recovering damages in a libel action unless clear and convincing evidence proves that a false and defamatory statement was published with actual malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
Kipper v. NYP Holdings Co., Inc. , 12 NY3d 348, 353-354 (2009) (internal citations and quotation marks omitted). Plaintiff's opposition arguments do not address this point of law, other than to state that he "does not concede that he is a ‘public figure’ for purposes of this litigation." See plaintiff's mem of law (motion sequence number 006), at 15, FN2. This statement is of no moment, however, since G & G is hardly obligated to prove plaintiff's "public figure" status during this action's discovery phase before it submits its inquiries. Further, plaintiff concedes, arguendo, that he could be deemed to be a "public figure," and his complaint certainly contains sufficient allegations to support such a finding. Id. ; notice of motion (motion sequence number 005), exhibit 1 (complaint). Each of the subject document requests is plainly calculated to elicit evidence of the extent (if any) of plaintiff's "public figure" status, although plaintiff simply dismisses these requests as seeking "vast swaths of information that has no relevance to this case." See plaintiff's mem of law (motion sequence number 006), at 16. The court disagrees, and rejects plaintiff's argument. The court has also already rejected plaintiff's argument that document requests are "overbroad" simply because they are initially worded to request "all documents." As long as the remainder of a request is "sufficiently specific to apprise the defendant of the category of documents which must be produced," it is not "overbroad." During v. City of New Rochelle, NY , 55 AD3d at 534. Here, the court finds that items 3-8, 10 in G & G's July 19, 2017 notice are "sufficiently specific" in regards to the categories of documents that they seek with respect to plaintiff's alleged status as a "public figure" Therefore, the court grants G & G's cross motion to the extent that it seeks an order to compel plaintiff to respond to these items.
G & G next argues that plaintiff should be compelled to respond to items 11-17 in its July 19, 2017 notice, which seek documents relating to plaintiff's "prior legal disputes." See defendant's mem of law (motion sequence number 006, G & G), at 6-8. Those items include requests for documents relating to plaintiff's previous defamation claims against Ke$ha, as well as other litigation involving allegedly unsavory business practices and drug use. See notice of cross motion (motion sequence number 006, G & G), McGuire affirmation, exhibit 3. G & G cites federal court precedent for the proposition that "such information is plainly discoverable." See defendant's mem of law (motion sequence number 006, G & G), at 7. Plaintiff responds that these requests are "improper," because they seek information that is either "irrelevant" or "confidential." See plaintiff's mem of law (motion sequence number 006), at 17-22. Both parties appear to have cited inapposite legal precedent to support their arguments. The federal court decisions that G & G cites do not state that evidence of "prior legal disputes" is "eminently discoverable." First, Sharon v. Time, Inc. (609 F Supp 1291 [SDNY 1984] ), did not involve any evidence of "prior legal disputes" at all; and second, Guccione v. Hustler Magazine, Inc. (800 F2d 298 [2d Cir 1986] ), only involved an analysis of the defense of a litigant being "libel proof" by virtue of an exceptionally damaged reputation (which no party has raised in this action). Plaintiff's papers do not explain why evidence of the subject matter of his prior litigation is "irrelevant," or for what reasons it is "confidential." Therefore, the court rejects his contentions as unsupported, and reiterates its earlier decision to err on the side of permitting G & G to discover this material, since doing so does not deprive plaintiff of the right to object to its admissibility at trial. Accordingly, the court grants G & G's cross motion to the extent that it seeks an order to compel plaintiff to respond to items 11-17 in its July 19, 2017 notice.
G & G next argues that plaintiff should be compelled to respond to items 18-20 in its July 19, 2017 notice, which seek "documents relating to Ke$ha Sebert and/or Lady Gaga." See defendant's mem of law (motion sequence number 006, G & G), at 8. G & G argues that "these requests relate to the central issue of whether [plaintiff] had any inappropriate contact, sexual or otherwise, with either of these women and thus relate to the issues of truth or substantial truth, [plaintiff's] reputation, his veracity and whether he has suffered any damages." Id. Plaintiff responds that the requests "improperly seek materials which are irrelevant." See plaintiff's mem of law (motion sequence number 006), at 22-23. The court rejects this argument for the same reason as discussed above; i.e., that New York law favors a policy of liberal discovery even where the material sought may ultimately be found inadmissible. Polygram Holding, Inc. v. Cafaro , 42 AD3d at 339. Therefore, the court grants G & G's cross motion to the extent that it seeks an order to compel plaintiff to respond to items 18-20 in its July 19, 2017 notice.
G & G next argues that plaintiff should be compelled to respond to items 21-22 in its July 19, 2017 notice, which seek "documents relating to falsity and actual malice." See defendant's mem of law (motion sequence number 006, G & G), at 8-9. Plaintiff responds that these requests are "overly broad." See plaintiff's mem of law (motion sequence number 006), at 23-24. The court has already rejected an "over-broadness" challenge to this material on the grounds that it is both relevant and narrowly-tailored to the question of whether or not plaintiff is a "public figure," and, thus, subject to a higher burden of proof in this action. Therefore, the court again rejects plaintiff's argument, and grants G & G's cross motion to the extent that it seeks an order to compel plaintiff to respond to items 21-22 in its July 19, 2017 notice.
G & G next argues that plaintiff should be compelled to respond to items 23-29 in its July 19, 2017 notice, which seek "documents relating to damages." See defendant's mem of law (motion sequence number 006, G & G), at 9-10. Plaintiff responds by reasserting his earlier argument that these items improperly request "information on categories of damages which plaintiff does not seek." See plaintiff's mem of law (motion sequence number 006), at 24-27. The court has already rejected this argument because New York law squarely holds that requests regarding particularized types of damages are proper where a plaintiff has raised a claim of "defamation per se," as plaintiff has done in this action. Liberman v. Gelstein , 80 NY2d at 435 ; Gatz v. Otis Ford , 274 AD2d at 450. Therefore, the court again rejects plaintiff's argument, and grants G & G's cross motion to the extent that it seeks an order to compel plaintiff to respond to items 23-29 in its July 19, 2017 notice.
Finally, G & G argues that plaintiff should be compelled to respond to item 9 in its July 19, 2017 notice, which seeks "all documents relating to or mentioning [both defendants], including but not limited to social media documents." See notice of cross motion (motion sequence number 006, G & G), McGuire affirmation, exhibit 3, at 7. G & G characterizes this as a request for "a very small set of documents" that "may constitute admissions, may disclose [inconsistent legal] positions ... and may bear on the litigation privilege defense." See defendant's mem of law (motion sequence number 006, G & G), at 10-11. Plaintiff responds that this request is, instead, "an improper fishing expedition." See plaintiff's mem of law (motion sequence number 006), at 28-29. The court has already rejected plaintiff's identical objection to Geragos's request for the same material to the extent that his request is limited to documents generated at the time of Geragos's alleged act of defamation on December 2, 2014 . The court now makes the same finding with respect to G & G's request: i.e., that it is proper to the extent that it seeks any social media documents issued by plaintiff that mention G & G at the time of the alleged act of defamation on December 2, 2014 . Therefore, the court grants G & G's cross motion to the extent that it seeks an order to compel plaintiff to respond to item 9 in its July 19, 2017 notice.
The second portion of G & G's cross motion, which concerns a proposed confidentiality order in this action, will be discussed in the following portion of this decision.
3. Plaintiff's Cross Motion
The final matter before the court is plaintiff's cross motion to Geragos's motion (motion sequence number 006) for a confidentiality order, pursuant to CPLR 3103 (a) (motion sequence number 006). Although neither Geragos, nor G & G, has included a request for a confidentiality order in their moving or cross-moving papers, both defendants have asserted that it would be appropriate for the court to enter such an order, and have presented copies of proposed orders. The relevant portion of CPLR 3103 provides as follows:
"(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any party ..., make a protective order denying, limiting, conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
CPLR 3103 (a). The Court of Appeals holds that:
"Such orders are discretionary and may be made at any time on the court's own initiative or on the motion of any party or witness in order to deny, limit, condition or regulate the use of any disclosure device. A protective order is designed to ‘prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.’ "
Cynthia B. v. New Rochelle Hosp. Med. Ctr. , 60 NY2d 452, 457-458 (1983) (internal citations omitted). In reviewing such exercises of discretion, the Appellate Division, First Department, has long abided by the rule that "[a]s a general matter, disclosure is warranted where records of a sensitive and confidential nature relate to the injury sued upon." Del Terzo v. Hospital for Special Surgery , 95 AD3d 551, 553 (1st Dept 2012) (emphasis added); citing Napoleoni v. Union Hosp. of Bronx , 207 AD2d 660, 662 (1st Dept 1994).
Here, plaintiff has presented the court with a proposed stipulation that includes a confidentiality order. See notice of cross motion (motion sequence number 006, plaintiff), Movit affirmation, exhibit 14. In his memorandum, plaintiff notes that "the parties cannot agree on a proposed confidentiality order for information exchanged in discovery," because "defendants insist upon including inappropriate language ... that would justify their improper attempts to relitigate the [Ke$ha] Sebert action and otherwise conduct a fishing expedition." See plaintiff's mem of law (motion sequence number 006), at 24-25. Geragos, on the other hand, has presented a second proposed stipulation that contains a definition of the term "confidential information" that uses language that is acceptable to both himself and G & G. See notice of motion (motion sequence number 006), Struble affirmation, exhibit C; notice of cross motion (motion sequence number 006, G & G) McGuire affirmation, exhibit 7. That language states as follows:
" ‘Confidential Information’ shall mean documents and testimony, and all information contained therein, and other information designated as confidential, if such documents and testimony contain trade secrets, proprietary business information, competitively sensitive information or other information, the disclosure of which would, in the good faith judgment of the party or, as appropriate, non-party designating the material as confidential, be detrimental to the conduct of that party's or non-party's business or the business of any of that party's or non-party's clients. ‘Confidential Information’ shall also include the email addresses, telephone numbers, home addresses, social security numbers and similarly personally identifying information for parties and third-party witnesses. Finally, ‘Confidential Information’ shall also include information regarding emotional, sexual, psychological or physical abuse or harassment."
Id. Defendants allege that plaintiff will agree to all but the last sentence of this proposed definition of "confidential information." See defendant's mem of law (motion sequence number 006, Geragos), at 24-25; defendant's mem of law (motion sequence number 006, G & G), at 4-5. Plaintiff responds that he "does not object to the confidentiality order providing that Lady Gaga's deposition testimony, if any, is designated as ‘confidential information,’ " but that he does object to the last sentence to the extent that it could "expand the scope of discovery in this action into irrelevant matters," and therefore urges the court to accept his proposed stipulation. See plaintiff's reply mem (motion sequence number 005), at 29-30. Geragos replies that "plaintiff's only objection is on relevance grounds," but that his and G & G's proposed stipulation is more appropriate "in view of the relevance of [plaintiff's] reputation for sexual misconduct." See defendant's reply mem (motion sequence number 006, Geragos), at 15-16. In the court's assessment, none of these arguments is sufficiently persuasive to justify an exercise of its discretion under CPLR 3103 (a) at this time.
In particular, the court believes that the statute requires more than a mere decision on whether or not to approve the final, disputed sentence in the parties' proposed stipulations. The excessively indefinite language in that sentence simply does not account for the various determinations that are contained in this decision. Of particular importance is that the parties' respective arguments concerning the relevance - or not - of any information about plaintiff's alleged prior acts of sexual misconduct, and/or the facts underlying plaintiff's prior litigation with Ke$ha, are now moot. The court has already determined that such evidence is relevant - as is evidence of any damages that plaintiff claims to have sustained either personally or to his reputation - and has granted those portions of defendants' motions and cross motions which seek production of that evidence pursuant to New York's policy favoring liberal discovery. See, e.g., Rivera v. NYP Holdings Inc. , 63 AD3d at 469 ; Polygram Holding, Inc. v. Cafaro , 42 AD3d at 340-341. The court is reassured that its decision is correct by the rule interpreting CPLR 3103 (a) that "disclosure is warranted where records of a sensitive and confidential nature relate to the injury sued upon." Del Terzo v. Hospital for Special Surgery , 95 AD3d at 553. In their current forms, of course, neither of the proposed stipulations takes the court's rulings into account. As a result, they must be re-drafted to do so. This may be done, at a minimum, by using language that specifically designates all of the types of evidence that the court has deemed to be relevant and discoverable as constituting "confidential information." Additionally, the parties may wish to explicitly reserve their rights to object to the admissibility of such evidence at trial, as is their right. Further, the parties have alluded to possibly seeking additional discovery from non-party witnesses (i.e., Lady Gaga), and they may wish to designate that as "confidential information" as well. The fact that there is a great deal of supposition underlying these considerations makes it improper for the court to draft the parties' confidentiality stipulation for them. Instead, at this juncture, the court believes that neither of the proposed stipulations before it is adequate to justify an exercise of discretion pursuant to CPLR 3103, and, therefore, denies plaintiff's cross motion for the entry of a confidentiality order under that statute. The court's denial is without prejudice to the parties' right to renew their application for a confidentiality order at the status conference of this action which will be scheduled in the near future. At that time, the court intends to enter an order to dispose of all of the remaining discovery issues in this action, and it is willing to consider incorporating a confidentiality provision into that order. The court closes this decision by strongly advising the parties to confer and agree on a mutually acceptable version of such a confidentiality order, and attempt also to resolve any other outstanding discovery issues among themselves as well.
DECISION
ACCORDINGLY, for the foregoing reasons, it is hereby
ORDERED that the motion, pursuant to CPLR 3124, of plaintiff Lukas Gottwald, p/k/a Dr. Luke (motion sequence number 005) is granted solely to the extent that it is
ORDERED that defendant Mark Geragos shall produce to plaintiff on or before November 21, 2018 responses to the following discovery demands:
1) items 3, 4 and 16 set forth in the "first request for the production of documents and things" dated May 1, 2017; and
2) interrogatories 8, 13-16, 21, 22, 24, 25, 46-48 and 64-88 set forth in the "first set of interrogatories" dated August 31, 2017, but is otherwise denied; and it is further
ORDERED that the cross motion, pursuant to CPLR 3103, of defendant Mark Geragos (motion sequence number 005) for a protective order is granted in part, to the extent that said defendant is excused from responding to the following discovery demand:
1) the "demand for insurance policy" dated May 1, 2017, but is otherwise denied; and it is further
ORDERED that the motion, pursuant to CPLR 3124, of defendant Mark Geragos (motion sequence number 006) is granted in part, to the extent that it is
ORDERED that plaintiff Lukas Gottwald, p/k/a Dr. Luke shall produce to defendant Mark Geragos on or before November 21, 2018 responses to the following discovery demands:
1) items 2-10, 12-13, 20-44, 46-50 and 52-54 set forth in the "first set of requests for the production of documents and things" dated August 1, 2017; and
2) items 2-9, 15, 17-18, 21, 23-28 and 32 set forth in the "second set of requests for the production of documents and things" dated September 15, 2017, but is otherwise denied; and it is further
ORDERED that the cross motion, pursuant to CPLR 3124, of defendant Geragos & Geragos, a Professional Corporation (motion sequence number 006) is granted in part, to the extent that it is
ORDERED that plaintiff Lukas Gottwald, p/k/a Dr. Luke shall produce to defendant Geragos & Geragos, a Professional Corporation on or before November 21, 2018 responses to the following discovery demands:
1) items 2-29 set forth in the "first request for the production of documents and things" dated July 19, 2017, but is otherwise denied; and it is further
ORDERED that the cross motion, pursuant to CPLR 3103, of plaintiff Lukas Gottwald, p/k/a Dr. Luke (motion sequence number 006) is denied without prejudice to the right to renew this application at the next scheduled hearing of this action; and it is further
ORDERED that counsel for all parties are directed to appear for a for a status conference before the court on December 6, 2018 at 11:00 AM in Room 581 of the courthouse at 111 Centre Street, New York, New York.