Martin v Daily News LP
Annotate this Case
Download PDF
Martin v Daily News LP 2012 NY Slip Op 30731(U) March 21, 2012 Supreme Court, New York County Docket Number: 100053/08 Judge: Martin Shulman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 312612012 [* 1] [* 2] Plaintiff, -against- Index No: 100053/08 w&mAQnh DAILY NEWS LP, et ai, Defendants. HON. MARTIN SHULMAN, J.S.C.: NEW YORK Motion sequences 8 and 9 are consolidated for disposition. In motion CLqg#&FF,CE couN7-Y seq 8, plaintiff moves and defendants cross-move to compel responses to outstanding discovery demands. In motion sequence 9, defendant Daily News, LP (I DNLP ) moves to quash plaintiffs attempt to depose its general counsel, Anne B. Carroll, Esq. ( Carroll ), who has also appeared as DNLP s counsel herein, and its employee, Scott Cohen ( Cohen ). Pefendgmts Motion for a Protective Order This court first addresses motion sequence 9 seeking a protective order prohibiting plaintiff from deposing Carroll and Cohen with respect to their roles In havlng the February 2007 article at issue in this defamation action restored to DNLP s website. As more fully set forth in this court s decision and order dated February IO,201 2 in the recently dismissed companion action also entitled Martin v Dai/y News LP, et a/. (NY County Index No. 103129/11) ( Martin II ),the subject article first appeared on the I As plaintiffs counsel notes in opposition, the proposed witnesses were not subpoenaed so the motion more accurately seeks a protective order prohibltlng plaintiff from proceeding with Carroll and Cohen s noticed depositions. [* 3] DNLP website in February 2007. Thereafter, due to technical changes made to the website, the article became unavailable online. Carroll realized the article was no longer avallable on the DNLP website in or about March 2010 and instructed DNLP s technical staff2 to restore it. In dismissing Martin II, this court rejected plaintiffs claim that this restoration canstituted a republication triggering anew the statute of limitations for an additional defamation cause of action. DNLP argues, and this court agrees, that the diamlssal of Martin II renders plaintiffs deposition notices moot. Plaintiff argues that Martin 11 s dlsmlssal will not render his dlscovety demands moot because the purported republication is relevant in this action to the issue of constitutional malice, that is a reckless disregard for truth or falsity in publication . . . Schwab Aff. in Opp. at 73. Thls court sees no relevancy in DNLP s 2010 restoration of the article to Its website vis a vis defendants intent at the time of the original 2007 publication. Plaintiff simply fails to connect the dots to adequately explain how restoring the article to DNLP s webslte might establish malicious intent at the time of its original publication three (3) years earlier. Indeed, this court previously found post-publlcatlon communications were irrelevant as not probative of defendants knowledge and intentions at the time of publication. See Martin v fM/y News, L.P., 2010 WL 1821988. In light of the foregoing finding of irrelevancy, it i unnecessary to address s DNLP s remaining arguments including, but not limited to, the propriety (or lack thereof) Cohen is DNLP s senior managing editor of digital media. Plaintiffs counsel contends that Carroll directed e-mails to Cohen regarding restoring the article and that he is DNLP employee Ethan Sacks boss . Schwab Opp. Aff. at 710. Sacks restored the article to the website and plaintiff has already deposed him on this subject. -2- [* 4] of deposing a party s counsel, and plaintiffs claim that DNLP waived the attorney-client privilege by providing limited post-publication discovery. Nonetheless, the court is compelled to note that this sought after discovery appears to be cumulative of previous discovery and depositions already taken. Plaintiff previously deposed several DNLP employees and there is no indicatlon that the witnesses DNLP previously produced lacked sufficient knowledge about this subject matter. Finally, the deposition notices also seek the production of overbroad (all documents reviewed In preparation for the proposed deposition) and/or irrelevant documentatlon (Carroll and Cohen s job descriptions and/or employment records). For the foregoing reasons, motion sequence 9 is granted in its entirety and defendants are granted a protective order striking plaintiffs improper deposition notices. Pbintlffs MotJon to C o r n u Turning to motion sequence 8, plaintiff moves to compel defendants to respond to his Additional Further Supplemental lnterrogatorles and Requests for Production served on March 22, 201 1 ( plaintiffs demands ). Defendants responded to plaintiffs demands by serving responses and Objections dated May 13, 201 I(Exh. A to Motion). Plaintiff 6 motion argues that defendants responses and/or objections to the following interrogatories are improper; 13(a), 16(a), 10(c ), le@), 16(9, lS(g), 16(h), 21, 21(c ) and 21(d).3 Plaintiff argues forthe first time in his reply papers that defendants response to interrogatory 14 is deficient. As this demand is closely related to interrogatory 13(a), the court sanalysis will include demand 14. -3- [* 5] At t h e outset, plaintiffs motion la denied as to interrogatories 16(a), 16(c ), 1S(e), 16(9, 16(g) and 16(h), all of which pertain to the subject article s purported republication. These demands are stricken as irrelevant for the same reasons PI wr;ublBly *t*t*d. As to plaintiffs remaining interrogatories, interrogatory 13(a) asks why defendants did not use the following search terms in its computer search for e-mails related to the subject of this action for the period January I, 2007 to January 2, 2008: Errol Louis , Jerome Karp , Martin Riskin , Theodore (Ted) Singer and Robert Tembeckjian . Interrogatory 14 demands that defendants identlfy and produce any documents the foregoing search terms might have yielded. This court agrees that the search terms defendants used, which Include several forms of plaintiffs name, Ravi Batra , the Commission on Judicial Conduct and phrases from the titles of the subject article, were sufficient to generate e-mails relevant to this action. However, the proposed search terms plaintiff requests are either too broad4or pertain to individuals who are peripheral to the subject article. Thus, plaintiffs motion Is denied as to interrogatories 13(a) and 14 and the demands are stricken. Interrogatory 21(a) through ( c) seeks further information as a result of defendants production of certain February 8, 2007 e-mails between defendant Louis and Robert Tembeckjian ( Tembeckjian ). Speclflcally, these interrogatories request details pertaining to any other e-mails or other communications between Louis and For example, a search of DNLP s computers for the name Errol Louis , one of DNLP s regular columnists, would potentially yield thousands of e-mails unrelated to the subject article. -4- [* 6] Tembeckjian regarding the subject artiole or plaintiff. While not irrelevant, these demands are duplicative inasmuch as Louis deposition testimony and a previously submitted affidavit from Tembeckjian corroborate that they never discussed plaintiff and had llmlted communications regarding the subject article. Accordingly, plaintiffs motion is denied and interrogatories 21(a), (b) and ( c) are stricken. Plaintiffs motion is similarly denied as to interrogatory 21(d), which requests the production of DNLP s hard drive from the computer used to identify the e-mails between Louis and Tembeckjian. Plaintiff fails to make a sufficient showing for such extraordinary relief, which would allow plaintiff access to unrelated and/or privileged materials. Plaintiffs motion is therefore denied and Interrogatory 21(d) Is stricken. Pef@ndmb r w a d Q m n C Defendants cross-move in motion sequence 8 to compel plaintiff to respond to Defendants Second Interrogatories and Document Requests dated June 16, 201 1 ( defendants demands , at Exh. A to Cross-Motion). Plaintiff objected to defendants demands in their entirety on various grounds. For each interrogatory in defendants demands, defendants also request corresponding documentation. Defendants cross-motion is granted as to interrogatories Iand 2 and corresponding document demands 1 and 2, which seek the names of plaintiffs trial witnesses and the subject of their testimony. Plaintiffs claim that no legal authority supports these requests does not render them improper. Plaintiff is directed to respond to these requests on or before April 30, 2012. With respect to interrogatory 3 seeking discovery of expert witnesses, the court declines to exalt form over substance as plaintiff urges by requiring defendants to serve -5- [* 7] a separate demand for expert witnesses rather than seeking this information via interrogatories. Nonetheless, the demand is too broad and must be narrowed to limit the information sought to reflect CPLR ยง3101(d)(l)'s requirements. This portion of the cross-motion is granted to the extent that plaintiff is directed to respond to interrogatory 3 as so limited; however, at this time, defendants' cross-motion is denied with respect to corresponding document demands 3 and 4 requesting expert reports and communications between plaintiff, hls counsel and/or anyone actlng on his behalf and the experts so identified. These document requests can be reconsidered In the event that plaintiff 8 expert disclosure is insufficient. Accordingly, plaintiff shall respond to interrogatory 3 on or before April 30, 2012 and t the extent that he may be unable to o do so at that time, shall supplement this response as soon as practicable, subject to CPLR 53101 (d)(l)'s provisions regarding sufficient notice to opposlng counsel. Defendants' cross-motion is denied as to interrogatories 4 and 11, both of which seek information probative of plaintiffs general reputation and any alleged harm the subject article may have caused thereto. Notwithstanding defendants' claim that these demands merely ask plaintiff to supplement his prior discovery responses aimed at identifying individuals with whom plaintiff has discussed the subject matter of the complaint in this action, in this action alleging defamation per se, injury to plaintiffs reputation is presumed. Ideal Pub/. Cop. v. Creative Features, Inc., 59 AD2d 862 (I" Dept. 1977). As such, inquiry into plaintiffs reputation is irrelevant. It fallows that corresponding document demands 5, 7 and 11 must also be stricken. interrogatories 5 through 9 and ask plaintiff to identify ail searches he has conducted or that were conducted on his behalf using various search terms such as: -6- [* 8] the title and subtitle of the subject article (5); Ravi Batra ; (6); Errol Louis and Daily News Columnist (7); varlous forms of plaintiffs name (8); and names of various individuals involved in the Riskin litigation (9).Corresponding document demand 6 seeks documents produced by the foregoing searches, Related document demand 10 requests documents pertaining to any requests made by or on behalf of plalntiff to presewe documentation relevant to this action, the subject article and/or the Riskin litigation ( litigation holds ). It appears from various non-party depositions that plalntiff dld not instruct court personnel to maintain documents on court computers pertaining to this action. As a result, many electronic files were automatically deleted. Despite plaintiffs claim that no responsive documents exist,5 defendants insist that plaintiff respond to these demands and in the event the requested documents do not exist, furnish an affidavit so stating and indicating the efforts made to search for responsive documents. This court agrees that plaintiff should be compelled to respond to interrogatories 5 through 8 and related document demands 6 and 10. Interrogatory 9 concerns the peripheral subject matter ofthe Riskin litigation and interrogatory 10 is overbroad as discussed below. Accordingly, the cross-motion is granted to the extent that plaintiff shall respond to interrogatories 5 through 8 and the corresponding document demands on or before April 30, 2012 and interrogatories 9 and 10 and their related document demands are stricken. Defendants Indicate that a search of their computers uncovered an e-mail from plaintiff to defendant LOUISwhich plaintiff dld not produce because it had been automatically deleted from court computers. -7- [* 9] With respect to interrogatories 12 and 13 and document demands 8 and 8, which seek information and documents regarding requests for plaintiff to recuse hlmself and any occasions when plaintiff has recused himself, the cross-motion is denied and these demands are stricken as overbroad and irrelevant. Defendants seek such information and documents from 1991 to date, making the demand unduly burdensome. Further, plaintiffs conduct in declining to recuse himself is only relevant as to the recusal request made in Rlskin v. Bellnda. This court sees no probative value in plaintiffs recusal history for the approximately 20 year period he has been on the bench. Contrary to defendants arguments, plaintiffs subjective views as to when recusal is warranted bear no relation to his claim that It was substantially false for defendant Louis to conclude he had a conflict of interest when he denied the recusal request in Riskin v. Belinda. Finally, the cross-motion is denied as to interrogatory 10 (identify searches conducted to respond to defendants present and prior demands) and document demand 12 (documents relied upon in responding to defendants demands), which are stricken as too vague, general and overbroad. For all of the foregoing reasons, it is hereby ORDERED that defendants motion for a protective order (sequence 9) is granted in its entirety; and it is further ORDERED that plaintiffs motion (sequence 8) is denied in its entirety; and it is further -8- I [* 10] ORDERED that DNLP's cross-motion (sequence 8) is granted in part and denied in part as set forth herein, and plaintiff is directed to respond to the demands previously specified on or before April 30, 2012. Counsel for the parties are directed to appear for a status conference on May 8, 2012 at Q:30am. at 60 Centre Street, Room 325, New York, New York. This constitutes this court's Decision and Order. Courtesy copies of same have been provided to counsel for the parties. Dated: New York, New York March 21, 2012 -... HON. MARTIN SHULMAN, J.S.C. FILED NEW YORK COUNTY CLERK'S OFFICE -9- .
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
