Carr v. Bovis Lend Lease
| Decision Date | 05 September 2012 |
| Docket Number | MOTIONSEQ. NO. 003,INDEX NO. 107413/10 |
| Citation | 2012 NY Slip Op 33171 |
| Parties | ROBERT CARR, Plaintiff, v. BOVIS LEND LEASE, CRP/RAR III PARCEL J, L.P., THE CARLYLE GROUP, and JOHN DOE #1 and #2 (fictitious name used to Identify the corporation which owned the elevator, and the Individual who operated It), Defendants. |
| Court | New York Supreme Court |
PRESENT: MANUEL J. MENDEZ
Justice
Plaintiff's motion submitted under _______________ 003, pursuant to CPLR §3103, seeks a protective order, vacating or striking the defendants' Notice to Admit and demand for authorizations for social media sites, alternatl Only pursuant to CPLR §3123, extending the time to provide a response to the Notice to ___ and demand for authorizations.
Defendants' motion submitted under Motion Sequence 004, pursuant to CPLR CPLR §3124 seeks to compel plaintiff to preserve electronically stored Information or pursuant to CPLR §3126, impose sanctions and/or dismiss the complaint for intentionally disposing of evidence.
Plaintiff's motion submitted under Motion Sequence 005, pursuant to CPLR §3103, seeks a protective order, vacating or striking the defendants' Demand for Preservation of Electronically Stored Information and extending plaintiff's time to file a Note of Issue and Certificate of Readiness.
On October 22, 2009, plaintiff alleges he sustained injuries at 400 West 63rd Street, New York, New York, when the door of a temporary elevator/holst/alamac failed to properly open as he attempted to enter, Injuring his left arm (Mot. Seq. 003, Exh. C).
On April 4, 2012, after plaintiff was deposed, the defendants served plaintiff with a twenty-eight (28) question Notice to Admit, seeking to have the plaintiff admit to postings on Facebook, MySpace,Twitter, YouTube video or YouTube channel . On April 9, 2012, defendants served a demand seeking authorizations for Facebook, Twitter, MySpace.Youtube, Fllckr, Friendster and Linkedin accounts (Mot. Seq. 003, Exh. C). Plaintiff responded to the Notice to Admit and served an objection to the Demand for Authorizations, objecting to both on the grounds that they were improper discovery toolsand there was no factual predicate for the discovery sought (Opp. Seq. 003, Exh. E & Mot. Seq. 004, Exh. E). On May 17, 2012, plaintiff provided defendants with an authorization for his Facebook account.
On June 5, 2012, defendants served a Demand for the Preservation of Electronically Stored Information seeking, "All Electronic Evidence, Including but not limited to: The Blackberry cellular phone, including memory card...;" and, "Any and all videos, recording devices, and metadata, Including memory cards used In the connection of uploading Information onto Facebook and other social media sites"(Mot. Seq. 004, Exh.H). On June 5, 2012, plaintiff objected to the Demand for Preservation of all Electronically Stored Information and further objected to the Demand for Authorizations claiming they are unduly burdensome, excessive and improper as discovery tools (Mot. Seq. 005, Exh. E).
The court has broad discretion In supervising disclosure and to grant a protective order pursuant to CPLR §3103 (148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D. 3d 486, 878 N.Y.S. 2d 727 [N.Y.A.D. 1st Dept., 2009]). The test concerning discovery is one of "usefulness and reason" and as such should lead to disclosure of admissible proof. Parties to an action are entitled to reasonable discovery of any relevant facts to the action (Allen v. Crowell-Collier Publ.Co., 21 N.Y. 2d 403, 288 N.Y.S. 2d 449, 235 N.E. 2d 430 [1968]). Disclosure sought Is required to lead to relevant evidence, and should not be, "overly broad or unnecessary and therefore 'palpably Improper"' (Perez v. Board of Educ. Of City of New York, 271 A.D. 2d 251, 706 N.Y.S. 43 [N.Y.A.D. 1st Dept., 2000]) Online postings, are not shielded from discovery, regardless of the use of privacy settings, If they are relevant to issues in the case (Patterson v. Turner Constr. Co., 88 A.D. 3d 617, 931 N.Y.S. 2d 311 [N.Y.A.D. 1st Dept., 2011]). A party seeking authorization for access to "Facebook" postings, In the context of a personal injury action, is required to specify the evidence sought and, "establish a factual predicate with respect to the relevancy of the evidence." (McCann v. Harleysville Insurance Company of New York, 78 A.D. 3d 1624, 910 N.Y.S. 2d 614 [N.Y.A.D. 4th Dept., 2010]).
The purpose of a Notice to Admit Is to eliminate those uncontested Issues which would take up time and become a burden at trial. A Notice to Admit is designed to seek admissions of fundamental Issues, a party is not obligated to provide admissions which may only be resolved after a full trial or which remains In dispute between the parties. A Notice to Admit may not be used as "subterfuge for obtaining additional discovery" (Hodes v. City of New York, 165 A.D. 2d 168, 666 N.Y.S. 2d 611 [N.Y.A.D. 1st Dept., 1991], and Meadowbrook-Rlchman, Inc. v. Chicchiello, 273 A.D. 2d 6, 709 N.Y.S. 2d 521 [N.Y.A.D. 1st Dept., 2000]). Failure to seek other related evidence or provide proof that the Information sought exists as data prior to serving a Notice to Admit, results In a finding that discovery sought is only a subterfuge for obtaining additional discovery (Ahroner v. Isreal Discount Bank of New York, 79 A.D. 3d 481, 913 N.Y.S. 2d 181 [N.Y.A.D. 1st Dept., 2010]).
Pursuant to CPLR §3124, the Court may compel compliance upon failure of a party to provide discovery. It Is within the Court's discretion to determine whether the materials sought are "material and necessary" as legitimate subject of inquiry or are being used for purposes of harassment to ascertain the existence of evidence (Roman Catholic Church of the Good Shepard v. Tempco Systems, 202 A.D. 2d 267, 608 N.Y.S. 2d 647 [N.Y.A.D. 1st Dept. 1994]). Pursuant to CPLR §3126, there must be a showing of a willful violation of a prior Order for discovery or that the failure to provide discovery was willful, contumacious or due to bad faith. This would Include predicate failure to provide the discovery sought. (Siegman v. Rosen, 270 A.D. 2d 14, 704 N.Y.S. 2d 40 [N.Y.A.D. 1st Dept. 2000]).
Courts have discretion to impose sanctions when a party "intentionally , contumaciously or In bad faith" destroys evidence prior to an adversary's Inspection. (Sage Realty Corporation v. Proskauer Rose LLP, 276 A.D .2d 11, 713 N.Y.S. 2d 155 [N.Y.A.D. 1st Dept., 2000]). Spoliation claims involving electronically stored evidence apply to the...
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