Opinion
INDEX NO. 156442/2017
04-12-2019
EDMUND MARFO Plaintiff, v. ANDRES CASTILLO, Defendant.
NYSCEF DOC. NO. 64 PRESENT: HON. ADAM SILVERA Justice MOTION DATE 03/27/2019 MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 53, 57, 62 were read on this motion to/for DISCOVERY.
Upon the foregoing documents, it is ordered that defendant's motion for discovery is decided below.
Here, defendant seeks: (1) to compel plaintiff to provide all photos and videos of plaintiff from the date of loss until the present from his smart phone, social media accounts, and computers; (2) to compel the production of all documents, photographs, data, and videos as demanded in defendant's Demand for Discovery dated August 9, 2018 and November 5, 2018; (3) to direct plaintiff to preserve all emails, social media accounts, texts, whatsapp accounts, smart phones, apps on smart phones, laptops, tablets, cameras, go cams, photographs, videos, tags, and not delete any data from the above devices, including but not limited to photographs, emails, texts, tags, from the date of the accident until present; and (4) to adjourn plaintiff's deposition until production of the requested discovery.
Preliminarily, the Court notes that defendant failed to submit a satisfactory affirmation of good faith as required, and, thus, the instant motion seeking discovery is denied. See 22 NYCRR §202.7(c); Sixty-Six Crosby Assoc. v. Berger & Kramer, LLP, 256 AD2d 26 (1st Dep't 1998). 22 NYCRR §202.7(a) provides that no motion which relates to discovery shall be filed unless it includes, "an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion". Such affirmation "shall indicate the time, place and nature of the consultation and the issues discussed and any resolutions". 22 NYCRR §202.7(c). Here, defendant's counsel's affirmation in good faith does not indicate the "time, place and nature of the consultation and the issues discussed...", as required. Instead, such affirmation merely states that defendant's counsel's office communicated with plaintiff's counsel's office but was unable to resolve the instant motion.
Even if the Court considers defendant's motion on the merits, such motion would still be denied. In support of their motion, defendant argues that "[a] plaintiff who claims the types of physical and psychological permanent injuries as alleged in the case at bar, cannot and should not be allowed to withhold photographs taken of [sic] after the accident showing plaintiff's physical activities post-accident". Pinczower Aff., ¶16. Defendant further argues that today's technology stores data about a person's health and physical efforts which would be used during the questioning of plaintiff at his deposition and would lead to the discovery of other evidence. In opposition, plaintiff proffers an attorney's affirmation arguing that the defendant's demands were responded to. Defendant replies.
In support of the motion, defendant cites to the Court of Appeals case Forman v Henkin, 30 NY3d 656 (2018). The Court of Appeals in Forman explicitly specified a two-prong test for "courts addressing disputes over the scope of a social media discovery". Id. at 665. The Court of Appeals held that:
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."Id. Furthermore, the Court of Appeals found that "[a] party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is 'material and necessary' " Id. at 661. The Forman Court determined that the "defendant [in the Forman case]...met his threshold burden of showing that plaintiff's Facebook account was reasonably likely to yield relevant evidence[, as, a]t her deposition, plaintiff indicated that, during the period prior to the accident, she posted 'a lot' of photographs showing her active lifestyle." Id. at 666.
Here, defendant has wholly failed to meet their initial burden. Defendant's counsel's affirmation in support lists the damages alleged by plaintiff, and argues that by virtue of plaintiff's claimed injuries, which include, inter alia, anxiety, mental anguish, and loss of enjoyment of life, the requested discovery is discoverable. However, this alone does not meet the initial threshold burden as required by the Court of Appeals. A review of defendant's demand demonstrates that defendant failed to demand discovery that was "reasonably calculated to yield information that is 'material and necessary' ". Forman v Henkin, 30 NY3d at 661. Defendant's blanket request for plaintiff's social media information fails to even attempt to narrow or limit the requested discovery to eliminate material that would be irrelevant to the instant action. The Court of Appeals in Forman explicitly held that "[t]he right to disclosure, although broad, is not unlimited." Id. at 661. The Forman Court "rejected the notion that commencement of a personal injury action renders a party's entire Facebook account automatically discoverable...[, and went on to state that d]irecting 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.". Forman v Henkin 30 NY3d at 664-665. Here, defendant is attempting to do just that, and are seeking to compel, inter alia, plaintiff's smart phones, laptops, tablets, and cameras, with no limitation on what data defendant would be entitled to. Undoubtedly there would likely be a significant amount of nonrelevant information stored on such devices. Rather, defendant's demands are blanket demands which would yield every photograph or communication plaintiff has on any topic prior to and since the motor vehicle accident.
Finally, the Court notes that defendant has failed to provide any basis for the request of the documents and information sought. Plaintiff's deposition has not been taken, and defendant has provided no basis for their knowledge that the requested information even exists. As defendant failed to meet their initial threshold burden of demonstrating that the discovery demanded was reasonably calculated to yield material and necessary information, defendant's motion is denied in its entirety without prejudice to renew, if applicable, following the completion of plaintiff's deposition.
Accordingly, it is
ORDERED that defendant Andres Castillo's motion to compel is denied in its entirety without prejudice to renew subsequent to the completion of plaintiff's deposition; and it is further
ORDERED that the parties shall appear on May 3, 2019 at 9:30am, in room 106 of 80 Centre Street, New York, NY, for a previously scheduled compliance conference; and it is further
ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon all parties with notice of entry.
This constitutes the Decision/Order of the Court. 4 /12/2019
DATE
/s/ _________
ADAM SILVERA, J.S.C.