Tener v. Cremer
| Decision Date | 22 September 2011 |
| Citation | 2011 N.Y. Slip Op. 06543,931 N.Y.S.2d 552,89 A.D.3d 75 |
| Parties | Trilby J. TENER, M.D., Plaintiff–Appellant,v.Miriam CREMER, M.D., et al., Defendants.New York University Langone Medical Center, Nonparty Respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Wagner Davis, P.C., New York (Bonnie Reid Berkow of counsel), for appellant.Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York ( William F. Cusack and Ricki E. Roer of counsel), for respondent.LUIS A. GONZALEZ, P.J., PETER TOM, RICHARD T. ANDRIAS, KARLA MOSKOWITZ, HELEN E. FREEDMAN, JJ.MOSKOWITZ, J.
This appeal provides us with the first opportunity to address the obligation of a nonparty to produce electronically stored information (ESI) deleted through normal business operations. The action underlying this discovery dispute concerns a statement about plaintiff that someone posted on a website known as Vitals.com on April 12, 2009. Plaintiff claims this statement defamed her.1
Plaintiff claims that through discovery she managed to trace the Internet protocol (IP) address of the computer from which the allegedly defamatory post originated “to a computer in the custody and control of New York University.” This computer had accessed the Internet through a portal located at Bellevue Medical Center and registered to nonparty New York University Langone Medical Center (NYU). According to NYU's Chief Information Security Officer, NYU had installed the Internet portal at Bellevue for the convenience of its residents who train there. The portal is a network address translation (NAT) portal that is essentially a switchboard through which a person can access the Internet. While only NYU personnel with proper security codes can gain access to NYU's computer system and medical records, anyone using a computer plugged into an ethernet outlet at Bellevue can access other web sites through the NYU portal. On April 12, 2009, as many as 2,000 NYU personnel and an untold number of Bellevue physicians, staff, and visitors could have accessed a web site through the NYU portal. In fact, the portal is capable of allowing access to up to 65,000 users at any one time.
On April 30, 2010, plaintiff served a subpoena on NYU seeking the identity of all persons who accessed the Internet on April 12, 2009, via the IP address plaintiff previously identified.2 With the subpoena, plaintiff served a preservation letter advising NYU that the identity of the person who posted the remarks was at issue and that NYU should halt any normal business practices that would destroy that information.
When NYU did not produce the information, plaintiff moved for contempt. In opposition to plaintiff's contempt motion, NYU's Chief Information Security Officer stated that
Plaintiff, in reply, submitted an affidavit from a forensic computer expert opining that NYU could still access the information using software designed to retrieve deleted information. The expert stated that “the term ‘written over’ is deceptive” because what really occurs is that “ ‘old’ information or data is typically allocated to ‘free space’ within the system.” Plaintiff's expert suggested using “X–Rays Forensic” or “Sleuth Kit” to retrieve the information from unallocated space.
Supreme Court denied the contempt motion in part because it found that NYU did not have the ability to produce the materials plaintiff demanded and that “this allegation is unrefuted as a reply affidavit contradicting such allegation has not been supplied.” 3
Supreme Court was incorrect. As just mentioned, plaintiff had interposed an affidavit in reply from an expert detailing the steps NYU could take to obtain the data, including the utilization of forensic software.
In its papers in opposition to the motion, NYU offered no evidence that it made any effort at all to access the data, apparently because it believed it could not, as a nonparty, be required to install forensic software on its system. However, the cases that NYU cites to support its assertion that it need not install forensic software are outdated. The most recent is from 1993, nearly 20 years ago ( see Carrick Realty Corp. v. Flores, 157 Misc.2d 868, 598 N.Y.S.2d 903 (Civ. Ct., New York County 1993). Thus, as discussed below, there are several unanswered questions regarding NYU's ability to produce the requested documents.
The party moving for civil contempt arising out of noncompliance with a subpoena duces tecum bears the burden of establishing, by clear and convincing evidence, that the subpoena has been violated and that “the party from whom the documents were sought had the ability to produce them” ( Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835, 461 N.Y.S.2d 54 [1983]; see also Gray v. Giarrizzo, 47 A.D.3d 765, 766, 850 N.Y.S.2d 549 [2008] ).
In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts, several courts, as well as bar associations, have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. Indeed, in 2006, the Conference of Chief Justices approved a report entitled “Guidelines for State Trial Courts Regarding Discovery of Electronically Stored Information.” New York's Uniform Rules For the Trial Courts specifically contemplate discovery of ESI. Rule 202.12(c)(3) allows a court, where appropriate, to establish the method and scope of electronic discovery (Uniform Rules for Trial Courts [22 NYCRR] § 202.12[c][3] ).
The Uniform Rules addressing the discovery of ESI are fairly recent. They took effect in 2009. However, the Commercial Division Rules have addressed discovery of ESI for some time. Rule 8(b) of the rules contains requirements similar to those in the Uniform Rules. The Commercial Division for Supreme Court, Nassau County has built on Commercial Division rule 8(b) to develop the most sophisticated rules concerning discovery of ESI in the State of New York. That court also publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue.
ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Accordingly, discovery rules contemplate data recovery. For instance, the Uniform Rules include the “anticipated cost of data recovery and proposed initial allocation of such cost” in the scope of electronic discovery (Uniform Rules for Trial Courts [22 NYCRR] § 202.12[c][3] ).
The Nassau Guidelines urge that parties should be prepared to address the production of ESI that may have been deleted. The Nassau Guidelines state that at the preliminary conference, counsel for the parties should be prepared to discuss:
“identification, in reasonable detail, of ESI that is or is not reasonably accessible, without undue burden or cost, the methods of storing and retrieving ESI that is not reasonably accessible, and the anticipated costs and efforts involved in retrieving such ESI.”
(New York State Supreme Court, Commercial Division, Nassau County, Guidelines for Discovery of Electronically Stored Information [ESI] ), effective June 1, 2009, II[c][4] ).
The Nassau Guidelines also suggest that the parties be prepared to discuss “the need for certified forensic specialists and/or experts to assist with the search for and production of ESI” ( id. at II[c][13] ) Most important, the Nassau Guidelines do not rule out the discoverability of deleted data, but rather suggest a cost/benefit analysis involving how difficult and costly it would be to retrieve it:
( id. at IV).4
The Federal Rules of Civil Procedure take a similar, although slightly more restrictive, approach. Rule 45 provides specific protections to non-parties. A person responding to a subpoena “need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost” (Fed. Rules Civ. Pro. rule 45[d][1][D] ). Moreover, “non-party status is a significant factor in determining whether the burden imposed by a subpoena is undue” ( Whitlow v. Martin, 263 F.R.D. 507, 512 [C.D.Ill.2009] ). Nevertheless, a federal court may still “order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)” (Fed. Rules Civ. Pro. rule 45[d][1][D] ). Rule 26(b)(2)(C)(i)-(iii) requires a court to limit any discovery: (1) “that is unreasonably cumulative or duplicative,” (2) “can be obtained from some other source that is more convenient, less burdensome or less expensive,” (3) “where the party has already had ample opportunity to obtain the information by discovery in the action” or (4) when “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of discovery in resolving the issues.” The Advisory Committee Notes explain that the costs of retrieving the information are properly part of this analysis.
Meanwhile, some federal courts have suggested strict limits on the discovery of specific types of data that are typically overwritten or ephemeral. For example, the Seventh Circuit Electronic Discovery Pilot...
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