Discovery – what is material and necessary

Brito v Gomez, 2018 NY Slip Op 08105 (2d Dept. 2018)

(1) “We are asked on this appeal to decide whether a litigant in a personal injury action who makes a claim for lost earnings and loss of enjoyment of life waives the physician-patient privilege with respect to prior injuries not raised in the lawsuit. Based on our settled precedent, we find that the privilege is waived only for injuries affirmatively placed in controversy.”

(2) “Contrary to defendants’ argument, neither plaintiff’s bill of particulars nor her deposition testimony places her prior knee injuries in controversy. In paragraph 10 of her bill of particulars, plaintiff limits the injuries she sustained in the 2014 accident to her cervical spine, lumbar spine, and left shoulder.  Accordingly, the specified bodily injuries that are affirmatively placed in controversy are the spinal and shoulder injuries. The claims for lost earnings and loss of enjoyment of life alleged in the bill of particulars are limited to these specified injuries. Plaintiff does not mention her prior knee treatments. Nor does she claim that the injuries to her knees were exacerbated or aggravated as a result of the 2014 automobile accident.”

(3) “However, our cases since Caplow has granted discovery of medical records only where the plaintiff has alleged an aggravation or exacerbation of prior injuries.”

(4) “Here, as we noted earlier, plaintiff does not claim that her prior knee injuries were exacerbated or aggravated as a result of the 2014 accident. Accordingly, plaintiff’s claim for lost earnings does not affirmatively place the condition of her knees in controversy ”

(5a) “Defendants cite to Second Department precedent in support of their argument that the condition of plaintiff’s knees is material and necessary to their defense. The Second Department has held that a party places his or her entire medical condition in controversy through “broad allegations of physical injuries and claimed loss of enjoyment of life due to those injuries”

(5b) “We are not persuaded by the reasoning of the Second Department. In our view, the Second Department’s precedent cannot be reconciled with the Court of Appeals’ rulings that the physician-patient privilege is waived only for injuries affirmatively placed in controversy.”

And we have a two judge dissent.  The Court of Appeals will tell us next year whether broad based allegations in the bill allow the entire body to be subject to disclosure or the prior injuries alleged as the First Department alleges..

Waiting to conduct discovery fatal to 3212(f) claim

Williams v New York City Tr. Auth., 2018 NY Slip Op 51286(U) (App. Term 2d Dept. 2018)

Inaction is acquiescence.

“At the outset, we reject plaintiff’s argument that defendant’s motion should be denied as premature on the ground that discovery was not yet complete (see CPLR 3212 [f]), and that plaintiff should be allowed to depose defendant’s employee and obtain certain documents. ” ‘A party who claims ignorance of critical facts to defeat a motion for summary judgment (see, CPLR 3212 [f]) must first demonstrate that the ignorance is unavoidable and that reasonable attempts were made to discover the facts which would give rise to a triable issue’ ” (Sasson v Setina Mfg. Co., Inc., 26 AD3d 487, 488 [2006], quoting Cruz v Otis El. Co., 238 AD2d 540 [1997]; see also Douglas Manor Assn. v Alimaras, 215 AD2d 522 [1995]; Stevens v Hilmy, 185 AD2d 840 [1992]). Plaintiff did not schedule the deposition or obtain the documents in question in the three years that the action had been pending before defendant made the summary judgment motion. Thus, plaintiff’s “own inaction is responsible for [his] failure to ascertain any facts” necessary to defeat defendant’s motion (Stevens v Hilmy, 185 AD2d at 842).”

Cart before the horse

Wegner v Town of Cheektowaga, 2018 NY Slip Op 01711 (4th Dept. 2018)

I read this order from Supreme Court, New York County involving an argument that discovery can prove the existence of the use of independent contractors, in an attempt to disclaim no-fault coverage.  I knew it was putting the cart before the horse.  Anyway, here is the case that answers my question:

“We also conclude that the court erred in granting plaintiff’s cross motion inasmuch as “he may not use discovery—either pre-action or pretrial—to remedy the defects in his pleading” (Weinstein v City of New York, 103 AD3d 517, 517-518 [1st Dept 2013]; see Naderi v North Shore-Long Is. Jewish Health Sys., 135 AD3d 619, 620 [1st Dept 2016]).”

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,

Dismissed due to discovery violation

Maria S. Masigla, P.T. v United Servs. Auto. Assn., 2017 NY Slip Op 51664(U)(App. Term 2d Dept. 2017)

“The determination to strike a pleading based on a party’s failure to provide discovery pursuant to a court order lies within the sound discretion of the trial court (see Kihl v Pfeffer, 94 NY2d 118, 123 [1999]; Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 923 [2012]; Giano v Ioannou, 78 AD3d 768, 770 [2010]; Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 1081 [2009]). Dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy but is warranted where a party’s conduct is shown to be willful, contumacious or in bad faith (see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685 [2011]). Plaintiff’s willful and contumacious conduct can be inferred here from its refusal to respond to defendant’s discovery demands after being directed to do so in the December 18, 2014 order, which order noted that any failure to comply therewith would result in the dismissal of the complaint, and from plaintiff’s failure to provide a reasonable excuse for its failure to comply”

If I am a betting man, Defendant asked for taxes, sign in sheets, banking records, payroll information, billing information, LASA agreements, etc.  Plaintiff argued that Defendant did not articulate a basis for invasive discovery.  The Court disagreed twice.  Plaintiff then fell on the sword.  That’s what I see here.  This then followed with a nicely bound brief from Freemont Payne and the rest, as they say, is history.

I have not seem too many Freemont Payne briefs through this office in about 6 months.  I guess I am finally getting along with Oleg (lol)

Limitations on medical record discovery

Spencer v Willard J. Price Assoc., LLC, 2017 NY Slip Op 08456 (1st Dept. 2017)

“In this slip and fall action, plaintiff seeks to recover for orthopedic injuries allegedly sustained to her knees, neck, back and shoulder. Under the circumstances, the motion court did not improvidently exercise its discretion in denying defendants’ motion to compel discovery of over 20 years of disability records relating to other conditions (see Gumbs v Flushing Town Ctr. III, L.P., 114 AD3d 573 [1st Dept 2014]). By bringing suit to recover for her physical injuries, plaintiff waived the physician-patient privilege as to all medical records relating “to those conditions affirmatively placed in controversy” (Felix v Lawrence Hosp. Ctr., 100 AD3d 470, 471 [1st Dept 2012]), but the court reasonably found that she did not place in issue her entire medical condition, including her diabetic condition and high blood pressure (see Kenneh v Jey Livery Serv., 131 AD3d 902 [1st Dept 2015]; Gumbs at 574).”

My question whenever I read these cases is whether the BP pleaded loss of enjoyment of life, which implicitly allows a fishing expedition into the person’s medical history.  I pulled the pertinent part of the BP and it says as follows:

“The plaintiff may permanently suffer from the aforesaid injuries from its effects upon his (sic) nervous system and may limit her activities in his (sic) employment and her life.  Plaintiff may be restricted in her normal life and activities and may permanently require medical and neurological care and attention.”


Discovery of the claims file – some limitations

Celani v Allstate Indem. Co., 2017 NY Slip Op 07799 (4th Dept. 2017)

(1) Contrary to defendant’s contention, the court properly ordered disclosure of pre-disclaimer claim notes containing statements made by the father. It is well settled that “there must be full disclosure of accident reports prepared in the ordinary course of business that were motivated at least in part by a business concern other than preparation for litigation” (Calkins v Perry, 168 AD2d 999, 999 [4th Dept 1990]; see Beaumont v Smyth, 306 AD2d 921, 921 [4th Dept 2003]). Here, the father made his statements to defendant’s investigators before defendant made the decision to disclaim, and there is no dispute that defendant’s employees relied on those statements in making that decision.”

(2)We agree with defendant, however, that the court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of the legal opinion of outside counsel and pre-disclaimer claim notes related thereto and denying that part of defendant’s cross motion seeking a protective order with respect to those items, and we therefore modify the order accordingly. Although reports prepared in the regular course of business are discoverable (see Lalka v ACA Ins. Co., 128 AD3d 1508, 1508-1509 [4th Dept 2015]), documents prepared by an attorney that are “primarily and predominantly of a legal character,” and made to furnish legal services, are absolutely privileged and not discoverable, regardless of whether there was pending litigation at the time they were prepared

** Note, this differs from the case from the First Department where the attorney was acting in a mixed role of fact finder and lawyer **

(3) We conclude that the court abused its discretion in granting that part of plaintiff’s motion seeking disclosure of defendant’s claim investigation manual and denying that part of defendant’s cross motion with respect thereto without first conducting an in camera review. As the moving party, plaintiff had the burden of demonstrating that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [2d Dept 1989]; see Quinones v 9 E. 69th St., LLC, 132 AD3d 750, 750 [2d Dept 2015]). Inasmuch as the employee of defendant who made the ultimate decision to disclaim testified that the manual did not contain a definition of “resident,” the court should have reviewed the manual in camera to determine whether it contained information material and relevant to the issues to be decided in the action

** The claims investigation manual is possibly privileged.

Was there a basis for detailed disclosure?

Maiga Prods. Corp. v United Servs. Auto. Assn., 2017 NY Slip Op 51148(U)

Interestingly, there was no discussion in this case relative to an offer of proof regarding whether what I presume is whether corporate disclosure was established.  The following is noted:  “Furthermore, plaintiff failed to object to the discovery demands at issue within the time prescribed by CPLR 3122 (a) and CPLR 3133 (a). Thus, plaintiff is obligated to produce the information sought by defendant except as to matters which are palpably improper or privileged (see Fausto v City of New York, 17 AD3d 520 [2005]; Marino v County of Nassau, 16 AD3d 628 [2005]; AVA Acupuncture, P.C. v AutoOne Ins. Co., 28 Misc 3d 134[A], 2010 NY Slip Op 51350[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Plaintiff has failed to establish that the discovery demands served by defendant seek information which is palpably improper or privileged.

Discovery granted/ Owner hailed into an EBT

Dana Chiropractic, P.C. v USAA Cas. Ins. Co., 2017 NY Slip Op 50944(U)(App. Term 2d Dept. 2017)

(1) “In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s cross motion to dismiss the complaint pursuant to CPLR 3126 or, in the alternative, to compel plaintiff to respond to its discovery demands, to the extent of compelling plaintiff to produce plaintiff’s owner for an examination before trial, and, in effect, continued plaintiff’s motion for summary judgment pending the completion of discovery (see CPLR 3212 [f]).”

(2) “Contrary to plaintiff’s contention, defendant is entitled to an examination before trial of plaintiff’s owner (see CPLR 3101 [a]; see also Midwood Acupuncture, P.C. v State Farm Fire & Cas. Co., 21 Misc 3d 144[A], 2008 NY Slip Op 52468[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Great Wall Acupuncture v State Farm Mut. Auto. Ins. Co., 20 Misc 3d 136[A], 2008 NY Slip Op 51529[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). ”

A sufficient showing was made warranting the owner to come in for an EBT


Special Referee cannot determine BP issues

Flores v New York City Hous. Auth.,

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading (see id. at 335-336), the present dispute over the contents of the plaintiff’s bill of particulars is not “part of any disclosure procedure” (CPLR 3104[a]) that CPLR 3104 authorizes a referee to supervise”

This one is interesting.