Opinion
Claim No. 129312
08-26-2021
In the Matter of the Claim of Joanne L. HANNA, Claimant, v. ROSWELL PARK CANCER INSTITUTE CORPORATION, Defendant.
For Claimant: CAMPBELL & ASSOCIATES, BY: R. Colin Campbell, Esq. For Defendant: GIBSON McASKILL & CROSBY, LLP, BY: Kathleen M. Sweet, Esq.
For Claimant: CAMPBELL & ASSOCIATES, BY: R. Colin Campbell, Esq.
For Defendant: GIBSON McASKILL & CROSBY, LLP, BY: Kathleen M. Sweet, Esq.
J. David Sampson, J.
Claimant Joanne L. Hanna alleges in claim no. 129312 that on February 29, 2016, her left foot was injured during the course of a surgical procedure at defendant Roswell Park Cancer Institute Corporation (Roswell Park). The parties completed pretrial discovery and a unified trial is scheduled to commence on November 15, 2021. Roswell Park now moves for an order by this Court modifying and limiting a subpoena served on James Devlin of Philip D. Smith and Associates on or about June 8, 2021; quashing a subpoena served on Mr. Devlin for his deposition or that in the alternative, a protective order be issued limiting the scope of this non-party deposition.
Roswell Park's counsel states in her affirmation in support of this motion that Philip D. Smith and Associates was retained to conduct surveillance of claimant. This surveillance was performed in December 2020 and January 2021. The surveillance of claimant was then disclosed to claimant's counsel on March 2, 2021 in a letter that also included the investigator's report, still photos and video. On April 5, 2021, claimant's counsel requested the names of the investigators, copies of logs, and confirmation that all video obtained had been provided. On April 12, 2021, Roswell Park's counsel provided the logs of James Devlin and Philip Wolf, the two investigators who conducted the surveillance and confirmed that all video had been disclosed.
On June 2, 2021, claimant's counsel again wrote to Roswell Park's counsel demanding full disclosure of the surveillance. In response, Roswell Park's counsel replied on June 3, 2021 that with the letter of April 12, 2021, she had provided the names of the investigators, their logs and that all video had been disclosed. Thereafter, on June 8, 2021, claimant's counsel served two subpoenas on investigator James Devlin. The first subpoena sought a certified copy of his case file, including billing and payment information, while the second subpoena sought a non-party deposition of Mr. Devlin.
Roswell Park contends that the subpoenas served on Mr. Devlin are improper, unlimited in scope, overly burdensome and seek disclosure of privileged material. In particular, Roswell Park contends that claimant is not entitled to the investigator's billing or payment information, nor is claimant entitled to take a non-party deposition of Mr. Devlin that is unlimited in scope prior to trial. In response to this motion and prior to the return date, claimant's counsel withdrew his subpoena to conduct a non-party deposition prior to trial. As to the other subpoena and the demand for billing and payment information, claimant's counsel contends that Roswell Park has not met its burden to show that this is privileged information that should not be disclosed. For the reasons stated below, the Court finds that claimant is not entitled to billing or payment information from Philip D. Smith and Associates and as such, the relief sought by Roswell Park to limit the scope of this subpoena is granted.
The discoverability of surveillance material is controlled by CPLR § 3101 (i), which requires full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda relating to them. Full disclosure is also required of out-takes, rather than only those portions that a party intends to use at trial. Nowhere within that statute is disclosure required of billing or payment information. In order to obtain this information, CPLR § 3101 (d) (2) requires claimant to demonstrate that there is both a substantial need and that undue hardship will result if ancillary material such as "invoices, reports, correspondence, bills, records of footage, proof of payment, logs of surveillance, etc." are not disclosed as these items are attorney work product and materials prepared in anticipation of litigation and for trial ( Barnes v New York State Thruway Auth., 176 Misc 2d 195, 198-199 [1998] ).
I find that claimant has not met her burden to show a substantial need or that undue hardship would ensue if access to billing or payment information is denied. Claimant's reliance upon Porcha v Binette, 155 AD3d 1676 [4th Dept 2017] is misplaced as this decision is inapplicable to the facts of the present motion. In Porcha , the plaintiff was found to be entitled to the billing and payment records of a medical expert who was to offer opinion testimony at trial and these records would assist plaintiff to prepare questions for cross-examination concerning the doctor's bias or interest. In the present action, the private investigator is not providing opinion testimony but rather the results of a surveillance of claimant. Assuming for purposes of this motion that Roswell Park lays a foundation for the admission of the surveillance photos and videos at trial, it will be for the Court, as fact finder, to view the surveillance photos and video and determine what weight, if any, this evidence should be given as to the claimant's alleged damages; whether any of the surveillance photos or video should be considered in determining the extent of claimant's damages; and whether any of this evidence demonstrates claimant's ability to perform acts that she may claim at trial to be unable to perform. At trial, it is the quality and content of the surveillance photos and video that will be evaluated, not the potential bias or interest of the private investigator. As such, I do not find that claimant has a substantial need for billing and payment records nor will their denial create any undue hardship.
Accordingly, as claimant has withdrawn her subpoena duces tecum to conduct a non-party deposition of Mr. Devlin, that issue is moot. As to the second subpoena duces tecum, the Court grants Roswell Park's motion no. M-97006 and hereby modifies and limits the subpoena duces tecum to the extent that James Devlin and Philip D. Smith & Associates are not required to produce any billing and payment information.
The following were read and considered by the Court:
1. Notice of Motion and Affirmation of Kathleen M. Sweet, Esq., dated July 8, 2021 with annexed Exhibits A-Q;
2. Attorney Affirmation of R. Colin Campbell, Esq., sworn to August 3, 2021; and
3. Reply Affirmation of Kathleen M. Sweet, Esq., dated August 17, 2021.