Prince v. Fox Television Stations, Inc.
| Decision Date | 28 August 2012 |
| Docket Number | No. 107129–2011.,107129–2011. |
| Parties | Matthew PRINCE individually and on behalf of D'Lites L.A.M.D. B.H., INC., Plaintiffs, v. FOX TELEVISION STATIONS, INC. and Arnold Diaz, Defendants. |
| Court | New York Supreme Court |
36 Misc.3d 1235
960 N.Y.S.2d 52
2012 N.Y. Slip Op. 51616
Matthew PRINCE individually and on behalf of D'Lites L.A.M.D. B.H., INC., Plaintiffs,
v.
FOX TELEVISION STATIONS, INC. and Arnold Diaz, Defendants.
No. 107129–2011.
Supreme Court, New York County, New York.
Aug. 28, 2012.
Napoli Bern Ripka Shkolnik, LLP by Adam Gana, New York City, for Plaintiffs.
Levine Sullivan Koch & Schulz, LLC by Katherine Bolger, New York City, for Defendants.
CAROL R. EDMEAD, J.
In this action, plaintiff Matthew Prince (“Prince”) individually and on behalf of D'lites L.A.M.D. B.H., Inc. (“D'Lites”) (collectively, “plaintiffs”) assert claims against defendants, Fox Television Stations, Inc. (“Fox TV”) and Arnold Diaz (“Diaz”) (collectively, “defendants”) for, inter alia, defamation/slander. Plaintiffs allege that defendants knowingly published false information even after the plaintiffs gave documents to the defendants establishing that the information published was false.
Plaintiffs now move to compel defendants to produce certain discovery withheld from disclosure.
Factual Background1D'Lites Emporium, Inc. (“DEI”) offers a diet-friendly alternative to traditional ice cream.
In order to operate DEI's alternative ice cream stores in the tri-state area, Prince established D'Lites, and entered into a sub-licensing agreement with First Class Products Group, LLC (the tri-state license holder) (“First Class”) to open three stores in Long Island, New York.
It is alleged that on March 2011, defendants began investigating D'Lites's nutritional claims, and collected samples of its ice cream for testing at Sani–Pure Food Laboratories (“Sani–Pure”). Defendants instructed Sani–Pure to label the samples as 1/2 cup (40–gram) samples, when in fact, they were 160 grams (Amended Complaint ¶ 29), causing the corresponding results in a report dated March 21, 2011 (the “Sani–Pure Initial Report”) to be false and misleading.
On April 12, 2011, Angela Cascarano, a Fox TV employee, contacted First Class's co-president Magda Abt (“Abt”) feigning interest in opening a retail ice cream store. After a meeting on April 27, 2011 between Cascarano and First Class, camaramen and Diaz confronted Abt, and advised customers at that location that D'Lites was “lying to customers.”
D'Lites then obtained the Sani–Pure Initial Report, and advised Sani–Pure about the alleged discrepancies. Sani–Pure corrected its Initial Report, and notified defendants of the corrections. Sani–Pure then provided defendants with a Supplemental Report on May 5, 2011 (the “Sani–Pure Supplemental Report”).
Yet, on May 12, 2011, defendants began broadcasting, on its popular TV show “Shame, Shame, Shame,” the Sani–Pure Initial Report, stating that based on tests of the product on a 1/2 cup serving size, D'Lites's product was not heathier and was misleading customers. For example, defendants indicated that the small cup contained at least 198 calories, even though the Sani–Pure Supplemental Report indicated that a small cup contained 53.39 calories. Defendants' “malicious” broadcast was repeated in several other radio and television broadcasts, and internet postings in New York and New Jersey in May 2011 (hereinafter referred to as the “May segment”).
After this action was commenced, on November 10, 2011 defendants aired a follow-up segment discussing a lawsuit in Florida against D'Lites Enterprises, Inc. and its owner, Gerald Corsover (“Corsover”) (the “November segment”). In that lawsuit, a group of store owners in Florida claimed that test results showed a higher calorie content than Corsover represented.
Plaintiffs then served upon defendants discovery demands, for inter alia, research materials reviewed in creating the “Report,” 2i.e., the May segment (No. 21), to which defendants agreed to provide, subject to several objections, “relevant, non-privileged documents responsive to this request.” Plaintiffs also sought documentation on industry and Federal Food and Drug Administration (“FDA”) standards of volume and measurement of ice cream (No. 30),” documents of defendants' efforts to determine the percentage of “overrun” (No. 29), communications between, inter alia, D'Lites, defendants, DEI, Abt, First Class, and Corsover, that were made regarding the May segment (Nos. 31 and 37), and notes and memoranda or laboratory testing regarding the May segment (No. 36). To these four, latter demands, defendants agreed to provide, subject to several objections, “relevant, non-privileged documents responsive to this request that were made or obtained in the course of producing the [May segment].”
In reply, plaintiffs pointed out that the relevant period was defined to include up to the present day, and that defendants' production was “deficient because defendants' failed to produce relevant documents after approximately May 19, 2011.”
Defendants then responded that they either produced all relevant documents or that to “the extent Plaintiffs seek information obtained in the course of producing news reports other than the one at issue in this litigation, such information is both irrelevant and protected from disclosure by the New York State Shield Law, N.Y. Civ. Rights Law § 79–h.” (the “Shield Law”) (emphasis added).
Plaintiffs now move to compel defendants to produce the aforementioned documents and information, arguing that defendants have arbitrarily withheld documents created after May 19, 2011,3 which are nonetheless relevant and likely to lead to admissible evidence. On October 3, 2011, in connection with the November follow up segment, Angela Cascarano inquired of Corsover as to whether the ice cream cones and cups pictured on the Dlitesemporium.com website were “still the recommended serving sizes?” Such question was similar to and pertains to the same information that defendants asked in May 2011 prior to the airing of the May Segment, i.e., “Is the small cup of ice cream that consumers are being served supposed to weigh 40 grams?” Corsover's attorney stated that the small cup was not advertised on the website as weighing 40 grams. The fact that Angela Cascarano asked the same question subsequent to the May Segment is relevant and material to whether the defendants intentionally failed to omit this information in the May Segment. Such information can help determine whether defendants' conduct was reckless or irresponsible in publishing false nutritional values of D'Lites' ice cream.As to Nos. 21 and 30, and 29, if defendants were aware that the FDA allowed certain variances in ice cream nutritional reporting and failed to take this into account in producing the May or November segment, a jury could find defendants' conduct grossly irresponsible.
As to Nos. 31 and 37, plaintiffs argue that the defendants' claim, that the Shield Law applies to all documents after the May 19, 2011 cutoff date, has no basis. There is no showing that every communication or document made after May 19, 2011 did not refer or relate to the May segment, and any internal or external correspondence referring to the May segment should not be considered “newsgathering,” and thus, be produced. Further, caselaw holds that the tripartite test requiring plaintiffs to show that the material sought is: 1) highly material and relevant; 2) critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and 3) not obtainable from any alternative source, does not apply where the reporter is a party to the litigation. Even if documents created after May 2011 overlap with the November...
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