Opinion
102688-08.
4-6-2010
VICTOR REYNIAK AND SYBILLE REYNIAK, Plaintiffs, v. BARNSTEAD INTERNATIONAL, ET AL., Defendants.
Jordan Fox, Esq., Belluck & Fox, for Plaintiffs. Judith Yavitz, Esq. (Barnstead), Reed & Smith, for Defendant. Kerry Ann Cook, Esq. (Kentile), McGivney & Kluger, For Defendant.
Mount Sinai School of Medicine ("Mt. Sinai") moves pursuant to CPLR 3103 for a protective order limiting the judicial subpoena duces tecum ("subpoena") served upon it by Kentile Floors, Inc. ("Kentile") in March 2009. During the months following such service, Mt. Sinai produced documents concerning the installation, use, and removal of asbestos at Mt. Sinai's hospital and medical school in response to the subpoena. Mt. Sinai's objection pertains to Kentile's position that in addition to the documents produced the subpoena also requires the production of certain other documents generated by Dr. Irving Selikoff (now deceased), who was a physician and member of Mt. Sinai's faculty.
In opposition, Kentile asserts that its counsel's previous motion against Mt. Sinai (motion sequence No.003) to compel compliance with an earlier non-judicial subpoena duces tecum and for sanctions against Mt. Sinai remains undecided by the court; that the instant motion for a protective order is untimely and Mt. Sinai has therefore waived any objection thereto; and that the information sought by Kentile pursuant to the subpoena is relevant and discoverable.
Pursuant to order dated December 7, 2009 and filed by the New York County Clerk on December 15, 2009, the previous motion to which Kentile refers (sequence #003) was disposed of as withdrawn by counsel, and that branch of Kentile's opposition is therefore moot.
In light of the document disclosure already provided by Mt. Sinai pursuant to the subpoena, Kentile's timeliness objection necessarily has to do with the articulation of Kentile's request that it be given access to Dr. Selikoff's private correspondence and research notes, and the time when Mt. Sinai should reasonably have been aware of that demand.
Dr. Irving Selikoff completed groundbreaking research on, among other things, the dangers of asbestos and asbestos exposure. Based upon his studies and findings, and subject to the scrutiny of peer review, Dr. Selikoff published more than 350 scientific articles and wrote or contributed to 30 monographs in his field. Under the subpoena as written, Kentile now seeks access to Dr. Selikoff's private correspondence with asbestos manufacturers, and his unpublished research notes. The subpoena, in relevant part, seeks production of:
6. Any and all documents, records, invoices, purchase orders, contracts, and other specifications, inventory lists, records, and/or any promotional materials, newsletters or publications which discuss, refer to, or relate to the occupational dangers of asbestos and the corresponding date(s) The Mount Sinai Hospital and/or Mt. Sinai School of Medicine was first in possession of knowledge regarding the occupational and other dangers of asbestos. This demand specifically includes, but is not limited to, any and all correspondence, documents, records, publications, newsletters, notes, memorandum, research or other items exchanged between The Mt. Sinai School of Medicine, The Mt Sinai Hospital, The Mount Sinai Medical Center and/or Dr. Selikoff and/or anyone from the Department of Occupational Medicine regarding alleged occupational and/or any other alleged dangers of asbestos.
(Moving Affidavit of William A. Ruskin, Esq. Sworn to October 21, 2009 ["Ruskin Affidavit"], Exh. A, Document Requests ¶6 )
Mt. Sinai asserts that in addition to its compliance in another unrelated asbestos case in this court entitled Felton v. Chesterton, et al., Sup. Ct., NY Co., Index No. 114005/06, in response to a subpoena issued by the same attorneys in that case who have issued the subpoena in this case, it has also fully complied with the request in this case. In this case, Kentile has already conducted a Mt. Sinai document review consisting of some 65 boxes and 20 filing cabinets, consuming some 71 attorney hours and, according to Sally Strauss, Esq., Associate General Counsel for Mt. Sinai Hospital, there are no further documents in Mt. Sinai's possession that are responsive to Kentile's subpoena (Affidavit of Sally Strauss, Esq.,sworn to March 9, 2009, p. 2; see also, Affidavit of Robert Springate, Senior Director, Facilities Department, sworn to July 31, 2009). Moreover, Mt. Sinai produced nearly four thousand responsive documents in Felton concerning the installation, use and abatement of asbestos at Mt. Sinai Hospital, as well as "all documents concerning communications between Dr. Selikoff and the hospital concerning the dangers of asbestos." Apparently, "[o]nly one document between the two entities concerning asbestos risks was identified, which was produced." (Ruskin Affidavit, p. 5).
Kentile asserts that the recited subpoena provision should be read to include, without limitation, all correspondence exchanged between Dr. Irving Selikoff and third parties, including but not limited to asbestos manufacturers and suppliers, over the entire course of Dr. Selikoff's career without circumscription of the scope of the required production. Kentile contends that to fully understand the meaning of Dr. Selikoff's research the "full content of the files of the institution" should be made available for its review (Affirmation of David M. Katzenstein, Esq. dated November 18, 2009, ¶21) .
Mt. Sinai argues that this demand is overly broad, and that the content thereof goes far beyond the language of the subpoena which, in the second sentence thereof, explicitly seeks "correspondence, documents, records, publications, newsletters, notes, memorandum, research or other items exchanged between [Mt. Sinai] and...Dr. Selikoff....(emphasis added)." In this regard, Mt. Sinai disputes Kentile's timeliness objection in so far as the documents as to which a protective order is sought essentially were never demanded by the subpoena, and Kentile's first request for the production thereof was made during a conference with the Special Master on October 7, 2009 following which this motion was brought on October 26, 2009. Mt. Sinai asserts that to permit such unfettered access to such unpublished documents would have a chilling effect and deter other institutions from conducting similar research.
Mt. Sinai's motion for a protective order limiting Kentile's subpoena duces tecum is granted.
Under CPLR 3103(a), the court may grant a protective order denying, limiting, conditioning or regulating the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. It has long been held that a subpoena duces tecum should not be used as a "`fishing expedition' to ascertain the existence of evidence" (Reuters Ltd v. Dow Jones Telerate, Inc. 231 AD2d 337, 342 [1st Dept., 1997]; see, People v. Gissendanner, 48 NY2d 543[1979] ). The additional document searches Kentile here seeks would create an unreasonable burden and expense for Mt. Sinai, a not-for-profit stranger to this litigation. "If the production of the material would become oppressive and unreasonably burdensome, the court, in balancing the hardships, should consider whether there are other sources for obtaining the material needed...." (In re R.J.Reynolds Tobacco Co., 136 Misc 2d 282, 285 [S.Ct., NY Co. 1987]). Hundreds of Dr. Selikoff's completed studies are available to the public. Kentile easily may rely on Dr. Selikoffs published materials without placing an additional burden on Mt. Sinai on the off chance that it might come up with something else.
Additionally, the expense Mt. Sinai would incur as a result of such a broad interpretation of the subpoena could well discourage other institutions from conducting vital health and safety research. Other scholars in the laboratory may fear that their unpublished notes, observations and ideas could be released to the public as a result of litigation. Although a scholar's right to academic freedom is not absolute, it should factor into a court's analysis on whether forced disclosure of documents is permissible (see, In re R.J.Reynolds Tobacco Co., 136 Misc 2d supra at 287).
In the circumstances of this case, Kentile's request is sweeping and indiscriminate. The relative burden on Mt. Sinai to conduct such a mass production of documents covering 30 years of Dr. Selikoff's studies outweighs any benefit Kentile might receive by conducting such a search (cf., Editel, New York v. Liberty Studios, Inc., 162 AD2d 345, 345-46 [1st Dept 1990] {"Such request would include vast amounts of irrelevant material and is overbroad, vague and unduly burdensome...."]). Moreover, paragraph 6 of the subpoena set forth herein is so lacking in specificity, as required by CPLR 3120, that this court is hard put to read into that demand any suggestion that it seeks the production of the private papers of Dr. Selikoff. Accordingly, to the extent that Kentile intended that the subpoena convey such a demand, based on the lack of reasonable particularity thereof, such demand is vacated (Dopf v. United Airlines Inc., 135 AD2d 453 [1st Dept 1987]; see, Thomas v. Holzberg, 227 AD2d 175, 176 [1st Dept 1996]). It follows that Mt. Sinai's objection to the demand for Dr. Selikoff's private papers upon hearing it spelled out in October 2009 during a conference with the Special Master is timely.
Accordingly, it is hereby
ORDERED that Mount Sinai School of Medicine's motion for a protective order is granted, and the portion of the subpoena that purports to require disclosure of the private correspondence and research notes of Dr. Irving Selikoff is hereby vacated.
This is the decision and order of the court.
The court particularly notes that this request is not circumscribed as to time.