Opinion
No. 651659/2013.
06-12-2014
Vijay SINGH, Plaintiff, v. PGA TOUR, INC., Defendant.
Peter R. Ginsberg, Peter R. Ginsberg Law, LLC, and Jeffrey S. Rosenblum, Rosenblum & Reisman P.C., for the Plaintiff. Jeffrey A. Mishkin, Anthony J. Dreyer, and Michael H. Menitove, Skadden, Arps, Slate, Meagher & Flom LLP, for Defendant.
Peter R. Ginsberg, Peter R. Ginsberg Law, LLC, and Jeffrey S. Rosenblum, Rosenblum & Reisman P.C., for the Plaintiff.
Jeffrey A. Mishkin, Anthony J. Dreyer, and Michael H. Menitove, Skadden, Arps, Slate, Meagher & Flom LLP, for Defendant.
Opinion
EILEEN BRANSTEN, J.
Before the Court is Plaintiff Vijay Singh's motion to compel disclosure of certain documents and other materials, as well as responses to interrogatories. Defendant PGA Tour, Inc., opposes. For the reasons that follow, Plaintiff's motion is granted in part and denied in part.
BACKGROUND
The facts of this case are set forth in this Court's prior decision, Singh v. PGA Tour, Inc., 42 Misc.3d 1225(A) (Sup.Ct. N.Y. Cnty.2014). There, the Court dismissed all but two of Plaintiff's causes of actions, sustaining those for breach of the implied covenant of good faith and fair dealing and for conversion. Plaintiff filed this motion on December 19, 2013, seeking to compel disclosure of four categories of documents and information. Each category is discussed in detail below.
ANALYSIS
While CPLR 3124 is the mechanism by which a motion to compel disclosure is made, it is another section, CPLR 3101(a), which sets forth the scope of discovery under New York law. CPLR 3101(a) “broadly mandates full disclosure of all matter material and necessary in the prosecution or defense of an action.' “ Freni v. Eastbridge Landing Assocs. LP, 309 A.D.2d 700, 702 (1st Dep't 2003) (quoting CPLR 3101(a) ). As the First Department recently noted, “the test of whether matter should be disclosed is one of usefulness and reason.' “ City of New York v. Maul, 2014 N.Y. Slip Op. 3941, at *2 (1st Dep't June 3, 2014) (quoting Allen v. Crowell–Collier Publishing Co., 21 N.Y.2d 403, 406 (1968) ). Indeed, “[i]t is well settled that, in determining the types of material discoverable by a party to an action, whether something is material and necessary' under CPLR 3101(a) is to 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.' “ Abdur– Rahman v. Pollari, 107 AD3d 452, 454 (1st Dep't 2013) (quoting Allen, 21 N.Y.2d at 406).
I.The First Category of Documents and Information
The first category of discovery sought includes document demand numbers 12 through 22 and interrogatory numbers 18 and 19 (collectively, the “First Category”). Broadly speaking, the First Category is made up of “documents and information concerning the PGA TOUR's treatment of other golfers who were suspected of using substances banned by the Program.” (Plaintiff's Memorandum of Law in Support at 12.)
Plaintiff alleges, among other things, that Defendant inconsistently imposed discipline on other golfers who used or were suspected of using deer antler spray. (Complaint (“Compl.”) ¶¶ 44–47.) As this Court explained previously, these allegations underlie Plaintiff's cause of action for breach of the implied covenant of good faith and fair dealing, which this Court held was sufficiently pled. Singh v. PGA Tour, Inc., 42 Misc.3d 1225(A), at *4–5 (Sup.Ct. N.Y. Cnty.2014). In addition, the substance in deer antler spray, which until recently prompted its inclusion on WADA's list of banned substances, is the hormone known as IGF–1, although there is some question as to the efficacy of the IGF–1 contained in the spray used by Plaintiff.
Document demand numbers 12, 13, and 15 through 17 seek documents related to positive tests for IGF–1, as well as any use, alleged use, attempted use, or disciplinary action taken with respect to other golfers for the use of that substance or deer antler spray. (Plaintiff's Exhibit (“Pl.'s Ex.”) A at 8–9.) Based on the allegations of inconsistent treatment underlying Plaintiff's cause of action for breach of the implied covenant, these documents are material and necessary.
Document demand number 14, which seeks “[a]ll documents and communications related to any positive tests by any golfer for any substance listed as a banned substance under the Program,” is outside the scope of Plaintiff's allegations because it includes documents related to violations for the use or suspected use of substances other than deer antler spray or IGF–1, and is therefore not material and necessary. (Pl.'s Ex. A at 8.)
Document demand numbers 18 through 22, which seek “[a]ll documents and communications related to” several specifically named golfers' “possible or actual violations of the Program,” should be limited in scope with the qualifier from demand number 17: “for the alleged use, attempted use, or use, of IGF-l or any product that allegedly contains IGF–1.” (Pl.'s Ex. A at 9.) Documents and communications related to these golfers' possible or actual violations of Defendant's anti-doping program for the use of other substances are outside the scope of Plaintiff's allegations-the inconsistent treatment of golfers for using deer antler spray, which contains IGF–1–and therefore are not material and necessary. For substantially the same reasons, interrogatory number 18 should be responded to, and interrogatory number 19 should be narrowed in scope to include only professional golfers who were found by the PGA TOUR to have violated the anti-doping program by “use[ing] or attempt[ing] to use a product that contained or allegedly contained IGF–1.” (Pl.'s Ex. B at 12.)
Defendant's remaining arguments in opposition to disclosure of the First Category are unpersuasive. While the documents and information sought in the First Category undoubtedly include “highly sensitive, confidential information regarding third-party golfers,” (Defendant's Memorandum of Law in Opposition (“Def.'s Opp. Mem.”) at 8), the parties' Stipulation and Order for the Production and Exchange of Confidential Information (“Confidentiality Order”) provides, among other things, that documents or information being produced may be designated as “Highly Confidential Information” by the producing party. (Confidentiality Order at 2.) Highly Confidential Information may only be shown to a limited group of people involved in this litigation, as set forth in paragraph 3(b), and “shall be utilized by the Receiving party and its counsel only for purposes of this litigation and for no other purposes.” (Confidentiality Order at 2–4.) The parties negotiated these protections amongst themselves and requested that the Court so order them. For Defendant to now argue that there is a category of documents or information with respect to which the need for confidentiality exceeds the parties' own negotiated-for protections and that, as a result, such documents should not be produced, seems contradictory.
Defendant's argument that the Confidentiality Order might be violated is too speculative to provide a basis for preventing the disclosure sought. As this Court noted at the February 3 hearing, “I do believe in confidentiality agreements, if there is, indeed, a breach of that, that's something that is very-very, very serious and I will take a great deal of umbrage at a breach. On the other hand, I cannot diminish or curtail the right of a plaintiff or defendant to what is rightfully their right to a discovery item because it might have other consequences.” (Feb. 3, 2014 Tr. 28:20–29:1.) Cf. Dawson v. Schoenberg, 2011 N.Y. Slip Op. 32033(U), at *4 (Sup.Ct. N.Y. Cnty. July 8, 2011) (noting that the use of a confidentiality stipulation “protects the plaintiff from disclosure of the [sealed criminal] records at issue to anyone other than those people and entities listed in the agreement, for the sole purposes listed in the agreement, and thereby prevents the plaintiff from suffering from any stigma as a result of having been the object of unsustained accusations”).
Defendant's claim that the documents and information in the First Category could be used to circumvent the protections implemented by Defendant's anti-doping program is unavailing for exactly the same reasons. That is, Defendant has the ability to designate these documents and information as Highly Confidential Information and thereby limit the number of people who may view these materials, as well as their permissible use.
Based on the foregoing, Plaintiff's motion to compel is denied as to document demand number 14. Plaintiff's motion to compel is otherwise granted as to the First Category, except that the scope of document demand numbers 18 through 22 and interrogatory 19 should be limited as set forth above.
II.The Second and Third Categories of Documents and Information
The second category of discovery sought includes document demand numbers 11 and 31, and interrogatory numbers 14 through 16 (collectively, the “Second Category”). According to Plaintiff, the Second Category is related to “the drafting of the [anti-doping] Program, effectively seeking production of the legislative history' of the program.” (Plaintiff's Memorandum of Law in Further Support (“Pl.'s Reply Mem.”) at 5.) The third category includes only interrogatory number 17 (together with the Second Category, the “Second and Third Categories”), which asks that Defendant “[d]escribe in detail each PGA TOUR member's involvement, if any, in the creation and drafting of PGA TOUR membership renewal forms, including but not limited to the identity and specific involvement of each individual member.” (Pl.'s Reply Mem. at 8.)
While the documents and information sought may have been probative of Plaintiff's claims that Defendant negligently created and administered the anti-doping program, Plaintiff's three causes of action for negligence were dismissed. Singh, 42 Misc.3d 1225(A), at *4.
In addition, Plaintiff argues that the documents and information are necessary to establish that the agreement between the parties is contract of adhesion. However, this Court determined that the release, waiver, and arbitration provisions contained in Plaintiff's membership renewal form and in the manual for Defendant's anti-doping program did not provide a basis for dismissing the remaining causes of action for breach of the implied covenant of good faith and fair dealing and conversion, obviating the need to address Plaintiff's claim that either or both of those agreements constitute an adhesion contract. Singh, 42 Misc.3d 1225(A), at *10–13. Indeed, Plaintiff acknowledges that “[a]n adhesion contract claim is not a cause of action for affirmative relief. Instead, Singh raised the adhesion contract issue in response to the PGA TOUR's waiver defense.” (Pl.'s Reply Mem. at 7.)
When asked whether the need for the Second Category was contingent upon the survival of Plaintiff's negligence claims, Plaintiff responded that the Second Category “goes to the heart of the other allegations that we have made about bad faith against the PGA.” (Feb. 3, 2014 Tr. 18:1–2.) However, Plaintiff has not established how documents and information concerning the “legislative history' “ of Defendant's anti-doping program would be material and necessary with respect to Plaintiff's remaining claims. Clearly, such discovery has no bearing on the conversion claim. Its relation to Plaintiff's breach of the implied covenant claim is unclear, as that claim is based on Defendant's application of the anti-doping program rules to Plaintiff, which is distinct from the process by which that program was created.
As such, within the Second and Third Categories, only a response to interrogatory number 16, which asks Defendant to “[d]escribe in detail each PGA TOUR member's involvement, if any, in the creation, drafting, adoption and implementation of the Program, including but not limited to the identity and specific involvement of each individual member,” (Pl.'s Ex. B at 11), should be compelled. However, the scope of that interrogatory should be narrowed to exclude “the creation, drafting, [and] adoption” of Defendant's anti-doping program, and, rather, should focus on its implementation with respect to any professional golfer's alleged use, attempted use, or use, of IGF-l or any product that allegedly contains IGF–1. For the reasons stated above, Plaintiff's request to compel disclosure as to the Second and Third Categories is denied in all other respects.
III.The Fourth Category of Documents and Information
The fourth category includes document demand number 10 and interrogatory number 13 (the “Fourth Category”), seeking documents and information related to “colostrum,” a substance containing IGF–1 but not included on Defendant's list of banned substances.
For the reasons that follow, this portion of Plaintiff's motion must be denied. This Court already determined Plaintiff's entitlement to documents and information related to Defendant's treatment of other golfers for using substances containing IGF–1, which is material and necessary to Plaintiff's claim that he was treated differently than other similarly situated golfers. However, colostrum is not included on Defendant's banned substances list. By completing the membership renewal form, Plaintiff subjected himself to the terms of Defendant's anti-doping program, which includes that list.
While Plaintiff may have a viable cause of action for his disparate treatment under the terms of that program, it is unclear how documents and information related to a substance which is not on Defendant's banned substances list has any bearing on that claim. As noted above, following the dismissal of his negligence claims, Plaintiff has not established a basis for this Court to compel the production of discovery related to the anti-doping program's “legislative history.' “ The documents and information sought in the Fourth Category are effectively part of that legislative history, albeit solely with respect to colostrum.
Although stated in the context of the now-defunct negligence claims, Defendant correctly points out the distinction, noting the difference between claims “based on how the TOUR applied the Program to Singh,' “ as opposed to those related to “any decision made by the TOUR at the time of the adoption of the Program as to how the Program should be constructed.” (Def.'s Opp. Mem. at 14.) To the extent that Plaintiff seeks to assert a cause of action on the basis of how Defendant's anti-doping program could or should have been structured, such a claim would be distinct and outside the scope of Plaintiff's cause of action for breach of the implied covenant of good faith and fair dealing. See Paragon Imaging Grp. Ltd. v. Scandia Realty Ltd. P'ship, 2013 N.Y. Slip Op. 33281(U), at *26–27 (Sup.Ct. N.Y. Cnty. Dec. 16, 2013) (noting that “the implied covenant exists only in aid and furtherance of other terms of the agreement of the parties,' and does not create additional obligations beyond the express terms of the contract” (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 304 (1983) )).
Accordingly, Plaintiff's motion to compel is denied as to the Fourth Category.
CONCLUSION
ACCORDINGLY, it is hereby
ORDERED that Plaintiff Vijay Singh's motion to compel disclosure (the “Motion to Compel”) is granted as to document demand numbers 12, 13, and 15 through 17, and as to interrogatory number 18; and it is further
ORDERED that the Motion to Compel is granted as to document demand numbers 18 through 22, except that the scope of such demands and any responses thereto shall be limited to each named individual's possible or actual violation of the Program for the alleged use, attempted use, or use, of IGF-l or any product that allegedly contains IGF–1; and it is further
ORDERED that the Motion to Compel is granted as to interrogatory number 16, except that the phrase “creation, drafting, adoption and” shall be stricken, and the scope of the interrogatory and any responses thereto shall be limited to the Program's implementation with respect to any golfer's alleged use, attempted use, or use, of IGF-l or any product that contains or allegedly contains IGF–1; and it is further
ORDERED that the Motion to Compel is granted as to interrogatory number 19, except that the scope of that interrogatory and any responses thereto shall be limited to professional golfers the PGA TOUR has found to have violated the Program by using or attempting to use a product that contained or allegedly contained IGF–1; and it is further
ORDERED that the Motion to Compel is denied as to the remaining document demands and interrogatories; and it is further
ORDERED that the parties are directed to appear for a status conference in Room 442, 60 Centre Street, on Tuesday, October 7, 2014, at 11:00 a.m.
This constitutes the decision and order of the Court.