Facebook is discoverable upon a proper foundation

Forman v Henkin, 2018 NY Slip Op 01015 (2018)

The Court has now laid the proper foundation that is required for Facebook material to be discoverable.  Based upon the below predicate, the following was noted:

(1) “That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable (see e.g. Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012] [rejecting motion to compel disclosure of all social media accounts involving injured party without prejudice to narrowly-tailored request seeking only relevant information]; Giacchettosupra, 293 FRD 112, 115; Kennedy v Contract Pharmacal Corp., 2013 WL 1966219, *2 [ED NY 2013]). Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation — such an order would be likely to yield far more nonrelevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from “unnecessarily onerous application of the discovery statutes” (Kavanaughsupra, 92 NY2d at 954).

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

– – – – – – – – – –

“At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.”

Assume Plaintiff says she never posts photos.  Then, an offer of proof was be necessary to obtain disclosure – this is what I see here,

Conditional order striking answer trumps cross-motion for summary judgment

Cps 227 LLC v Brody, 2016 NY Slip Op 00446 (1st Dept. 2016)

“Supreme Court properly struck defendant’s answer based on its finding that he failed to comply with a conditional order requiring compliance with discovery demands, and his pattern of disobeying discovery orders (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [1st Dept 2010]). It also properly awarded plaintiff its attorneys’ fees and costs as a result of defendant’s discovery abuses. As plaintiff was entitled to have the answer struck and a default judgment entered on the complaint, the court properly awarded the sum alleged in the complaint without ordering an inquest, and correctly declined to consider the merits of defendant’s cross motion for summary judgment (see AWL Indus., Inc. v QBE Ins. Corp., 65 AD3d 904 [1st Dept 2009]).”

EBT upheld

Duke Acupuncture, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51701(U)(App. Term 2d Dept. 2015)

“Defendant sufficiently established the timely mailing (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) of the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. However, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue. Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

The branch of defendant’s motion seeking, in the alternative, to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). As defendant is defending this action on the ground that the services rendered lacked medical necessity and defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, such an examination was material and necessary to defendant’s defense (see also Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d & 11th Jud Dists 2008]).”

Chiropractic Assoc. of Richmond Hill, P.C. v Mercury Cas. Co.,2015 NY Slip Op 51700(U)(App. Term 2d Dept. 2015)

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v Mercury Cas. Co., 2015 NY Slip Op 51702(U)(App. Term 2d Dept. 2015)


Depositions of medical providers

Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co., 2015 NY Slip Op 51133(U)(App. Term 2d Dept. 2015)

“In this action by a provider to recover assigned first-party no-fault benefits, six days after plaintiff served a motion seeking summary judgment, defendant served a notice of deposition of plaintiff’s assignor’s treating provider. Plaintiff timely objected, arguing, among other things, that disclosure was stayed pursuant to CPLR 3214 (b). Immediately after plaintiff’s assignor’s treating provider failed to appear for the deposition, defendant moved to compel plaintiff to, among other things, produce plaintiff’s assignor’s treating provider for a deposition. Plaintiff cross-moved, inter alia, for a protective order pursuant to CPLR 3013 and to strike defendant’s notice to take deposition on the ground that the notice to take deposition was palpably improper. Insofar as is relevant to this appeal, by order entered January 7, 2014, the Civil Court granted the branch of defendant’s motion seeking to compel plaintiff’s treating provider to appear for a deposition and denied plaintiff’s cross motion. This appeal by plaintiff ensued.”

“CPLR 3101 (a) provides for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Parties to an action are entitled to reasonable discovery “of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see Traditional Acupuncture, P.C. v State Farm Ins. Co., 24 Misc 3d 129[A], 2009 NY Slip Op 51335[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Where, as here, defendant is defending this action on the ground that the services rendered lacked medical necessity, the court’s determination that a deposition of plaintiff’s assignor’s treating provider was material and necessary to defendant’s defense was proper”(see Great Health Care Chiropractic, P.C. v Interboro Ins. Co., 41 Misc 3d 130[A], 2013 NY Slip Op 51737[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also CPLR 3214 [b] [court may grant discovery notwithstanding service of a summary judgment motion”

Again, another division between the knee jerk notice of deposition that failed in Ralph Medical and the full breadth of disclosure that the Appellate Term Second Department will allow.

A worthless preclusion order

Optimal Well-Being Chiropractic, P.C. v Chubb Indem. Ins. Co., 2014 NY Slip Op 51807(U)(App. Term 2d Dept. 2014)

“Defendant’s only argument on appeal with respect to its cross motion is, in essence, that the complaint should have been dismissed on the ground that plaintiff will not be able to demonstrate its right to recover at trial because plaintiff is precluded, pursuant to a prior so-ordered discovery stipulation, from offering, among other things, the bills or its own documentary proof of the submission of those bills. At a trial, a no-fault plaintiff’s prima facie burden is to demonstrate proof of the submission to the defendant of the claim forms at issue (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33Alev Med. Supply, Inc. v Geico Gen. Ins. Co., 44 Misc 3d 131[A], 2013 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As the record demonstrates that the bills at issue were denied, and as the denials admit receipt of the bills (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]), defendant has not shown that plaintiff will not be able to establish its right to recover at trial. Therefore, defendant has not established a basis to disturb so much of the order as denied defendant’s cross motion for summary judgment dismissing the complaint.”

Absent an order striking the complaint, discovery sanctions against the medical provider are futile.


Conditional discovery order vacated upon showing of law office failure

Elite Med. NY, P.C. v American Tr. Ins. Co., 2013 NY Slip Op 51738(U)(App. Term 2d Dept.2013)

“Contrary to plaintiff’s argument, defendant offered a reasonable excuse of law office failure for its three-week delay in complying with the directives of the conditional discovery order (see Rothman v Westfield Group, 101 AD3d 703 [2012]; Goldsmith Motors Corp. v Chemical Bank, 300 AD2d 440 [2002]; see also Trimed Med. Supply, Inc. v American Tr. Ins. Co., 33 Misc 3d 131[A], 2011 NY Slip Op 51880[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Terra Chiropractic, P.C. v Hertz Claim Mgt. Corp., 29 Misc 3d 127[A], 2010 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Defendant also demonstrated meritorious defenses to the action. Accordingly, the Civil Court did not improvidently exercise its discretion in declining to preclude defendant from presenting its evidence.”

Blown discovery stipulation/order granting conditional preclusion relief defeated upon showing of law office failure.

Court takes judicial notice of Supreme Court declaratory judgment action

Eagle Surgical Supply, Inc. v AIG Indem. Ins. Co., 2013 NY Slip Op 51441(U)(App. Term 2d Dept. 2013)

“the parties entered into a so-ordered stipulation, dated July 25, 2008, pursuant to which defendant was to provide plaintiff with responses to its interrogatories within 60 days or be precluded from offering evidence at trial.”

“In 2009, defendant commenced a declaratory judgment action in Supreme Court, Nassau County, against, among others, plaintiff and its assignor, in regard to a number of accidents, including the July 2007 accident. The Supreme Court issued a stay of all pending and future actions between the parties in February 2009. On June 15, 2010, a default declaratory judgment was entered in the Supreme Court in favor of defendant, finding, among other things, that the policy in connection with plaintiff’s claim is “null and void,” that defendant had no duty to provide coverage for the subject no-fault claim, and that since plaintiff and its assignor had “violated their respective obligation [sic] to appear for an examination under oath . . . [defendant] has no duty to defend or indemnify [plaintiff and its assignor] . . . for any claims of personal injury, no-fault, UM or SUM benefits.”

“In 2011, plaintiff moved, in the Civil Court action, for a final order of preclusion and summary judgment. Defendant cross-moved for summary judgment dismissing the Civil Court complaint on the ground that the June 15, 2010 declaratory judgment had res judicata effect. Thereafter, by order dated September 16, 2011, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.”

“…It is well settled that default judgments can have res judicata effect (see Lazides v P & G Enters., 58 AD3d 607 [2009]; Ava Acupuncture, P.C. v N Y Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).”

“Although the conditional preclusion order contained in the July 2008 so-ordered stipulation became absolute upon defendant’s failure to comply therewith (see e.g. Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907, 908 [2007]; Siltan v City of New York, 300 AD2d 298 [2002]; Midisland Med., PLLC v NY Cent. Mut. Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50993[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Coleman v Thompson, 5 Misc 3d 136[A], 2004 NY Slip Op 51543[U] [App Term, 2d & 11th Jud Dists 2004]), thereby precluding defendant “from offering evidence at trial,” it did not preclude the Civil Court from giving res judicata effect to the June 10, 2010 declaratory judgment (see e.g. Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]; Ptasznik v Schultz, 47 AD2d 197, 198 [1998]).”

In this case, note that the Court cites to pinpoint citation 61 AD3d 13, 20.  Page 20 of Kingsbrook states that a Court must take judicial notice of: “…undisputed court records and files….  Even material derived from official government Web sites may be the subject of judicial notice…”

Jumped the gun on preclusion

Delta Diagnostic Radiology, P.C. v Travelers Prop. Cas. Co. of Am., 2012 NY Slip Op 51064(U)(App. Term 2d Dept. 2012)

(1) Preclusion premature

“The Civil Court granted [*2]the branch of defendant’s motion seeking to preclude plaintiff from presenting evidence at trial related to the discovery requested, finding that the responses provided by plaintiff to defendant’s demand for verified written interrogatories were given by an employee of plaintiff’s corporation, not by an owner, officer, or managing individual of the corporation, and, thus, that the responses were insufficient. In our opinion, the Civil Court improvidently exercised its discretion in granting the branch of defendant’s motion, pursuant to CPLR 3126, seeking to preclude plaintiff from offering evidence at trial related to the discovery requested (see Castor Petroleum, Ltd. v Petroterminal de Panama, S.A., 90 AD3d 424 [2011]; Allen v Calleja, 56 AD3d 497 [2008]), particularly in light of the fact that, at the time the motion was heard by the court, plaintiff had already responded to defendant’s discovery requests, which had first been served on plaintiff only six weeks before the motion was brought. The drastic remedy of preclusion is inappropriate absent a clear showing that a party’s failure to comply with discovery demands was willful or contumacious”

(2) An employee with knowledge can verify an interrogatory

“Moreover, with respect to the Civil Court’s determination to preclude plaintiff from presenting evidence at trial related to the discovery requested because a mere employee of plaintiff’s corporation had responded to the discovery requests, we note that it is not improper for an employee who has the requisite knowledge and data to respond on behalf of his or her corporation (see Necchi S.P.A. v Nelco Sewing Mach. Sales Corp., 23 AD2d 543 [1965]; Southbridge Finishing Co. v Golding, 2 AD2d 430 [1956]; Siegel, NY Prac § 345, at 573; § 361, at 613 [5th ed]).”

Final order of preclusion became automatic – no need to move for one

Ortho-Med Surgical Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 22119 (App. Term 2d Dept. 2012)

The “so-ordered” stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’s failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52283[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Nevertheless, plaintiff moved for a final order of preclusion. Although it was unnecessary for plaintiff to make such further application to the court, in doing so, plaintiff authorized the court to revisit the issue of preclusion and to consider defendant’s opposition thereto.

“A defendant’s preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment or relieve the plaintiff of the burden of proving its case (see Mendoza v Highpoint Associates, IX, LLC, 83 AD3d 1 [2011]). In the instant case, plaintiff’s moving papers failed to establish a prima facie entitlement to summary judgment (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the Civil Court properly denied the branch of plaintiff’s motion seeking summary judgment.”

“On appeal, defendant argues that it was not precluded from offering evidence in support of its cross motion for summary judgment because the so-ordered stipulation barred it only from offering evidence “at trial.” However, to allow defendant to use evidence in support of its cross motion which it is barred from introducing at trial “would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial”

Perhaps three observations can be divined from this case.  First, there is no need to formally move for a final order of preclusion.  Thus, it would be acceptable for the party who precluded his or her adversary to file a Note of Issue (Notice of Trial) with certificate of readiness and not worry about falsely responding in the affirmative to the statement: “All discovery is complete”.

Second, we already knew that the preclusion to offer evidence at trial carried over to summary judgment.

Third, what did Plaintiff need to show on motion to win?

Brutal discovery decision from the Appellate Term First Department

Michael Palmeri, M.D., PLLC v General Assur. Co., 2010 NY Slip Op 51879(U)(App. Term 1st Dept. 2010)

I am not even sure this is something you would even see out of the second department.  I am working off the assumption that there were no prior discovery applications in this matter; rather, this was the first discovery motion and it was either first time or second time the motion was on the calendar.

Here is the short discussion from the case:

“Defendant did not present a reasonable excuse for its failure to provide written responses to plaintiff’s disclosure requests or its failure to submit opposition papers to plaintiff’s motion to strike defendant’s answer pursuant to CPLR 3126. Therefore, Civil Court providently exercised its discretion in denying defendant’s motion to vacate a default judgment entered against it following its failure to oppose plaintiff’s motion to strike.

Even assuming that defendant’s argument regarding its request for an adjournment of plaintiff’s motion to strike is properly before us, Civil Court providently exercised its discretion in denying that request (see generally Santora & McKay v Mazzella, 211 AD2d 460, 462 [1995]).”

So this is what the court is telling me: (1) Make a discovery motion on every case; (2) Refuse to consent to any adjournments; (3) Force the court to write an order on all of these motions; and (4) Appeal every case where answering papers were not interposed and the court refuses to strike the complaint.

Query – can it now be argued that in a no-fault matter, it is an abuse of discretion not to strike a plaintiff’s complaint, where the ultimate sanction for failing to respond to a perfunctory disclosure motion is not granted?  Think about it.