Carr v Bovis Lend Lease

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Carr v Bovis Lend Lease 2012 NY Slip Op 33171(U) August 30, 2012 Sup Ct, New York County Docket Number: 107413/10 Judge: Manuel J. Mendez 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. - SCANNED ON 91512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNm M M U E L J. MM D E Z PRESENT: PART I 3 Justlce ROBERT CARR, INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. Plaintiff, - -anainst- 107413110 08-01-2012 003 BOVlS LEND LEASE, CRPlRAR 111 PARCEL J, L.P., THE CARLYLE GROUP, and JOHN DOE #l #2 and (flctltious name used to identify the corporatldn which owned the elevator, and the Individual who operated it), Defendants. The foiiowlng papers, numbered I to 6 were read on thlo motion to/for a Protectlve 0 rder *. PAPER3 Notice of Motion/ Order to Show Cause .. Answering Affldavlts - Exhibits -Affldavita - 1-3 cross motion 4-5 Replying Amdavits Cross-Motion: D ,L X Yes No PiaintiWs motion submltted under seeks a protective order, vacating or strl for authorizations for social medla sites, ai the time to provide a response to the Notic e 003, pursuant to CPLR g3103, nts' N6tlce to Admit and demand suarlt to CPLR 93123,extending demand for authorizations. Defendants' motlon submitted under Motion Sequence 004, pursuant to CPLR CPLR 53124 seeks to compel plaintiff to preserve electronically stored Information or pursuant to CPLR 93120, impose sanctions and/or dismiss the complaint for intentionally disposing of evldence. Plaintiffs motion submitted under Motion Sequence 005, pursuant to CPLR 93103, seeks a protective order, vacating or strlking the defendants' Demand for Preservation of Electronically Stored informatlon and extending plalntlff s time to file a Note of issue and Certlflcate of Readiness. On October 22, 2009, plaintiff alleges he sustained injuries at 400 West 63'' Street, New York, New York, when the door of a temporary eievatorlhoistlaiamac failed to properly open as he attempted to enter, injuring his left arm (Mot. Seq. 003, Exh. C). On Aprli4, 2012, after plaintiff was deposed, the defendants sewed plaintiff wlth a twenty4ght (28) question Notice to Admit, seeking to have the plalntlff admit to postings on Facebook, MySpace,Twitter, YouTube video or YouTube channel (Mot. Seq. 003, Exh. A). On April 9,2012, defendants served a demand seeking authorizations for Facebook, Twitter, MySpace,Youtube, Flickr, 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, obJectingto both on the grounds that they were improper dlscovery tools [* 2] and 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 wlth an authorization for his Facebook account. On June 6,2012, defendants sewed a Demand for the Preservation of Electronically Stored informatlon seeklng, All Electronic Evldence, inciudlng but not limited to: The Blackberry cellular phone, includlng memory card...; and, Any and all vldeos, recording devices, and metadata, inciudlng memory cards used In the connection of uploading lnformatlon onto Facebook and other soclal media sites (Mot. Seq. 004, Exh.H). On June 6, 2012, plalntiff obJectedto the Demand for Preservation of ail Electronically Stored lnformatlon and further objected to the Demand for Authorizations clalmlng they are unduly burdensome, excesslve and improper as dlscovery tools (Mot. Seq. 006, Exh. E). The court has broad dlscretlon In supervising disclosure and to grant a protectlve order pursuant to CPLR $3103 (148 Magnolia, LLC v. Merrlmack Mut. Fire Ins. Co., 62 A.D. 3d 480,878 N.Y.S. 2d 727 [N.Y.A.D. lDt 20091). The test concerning discovery I one Dept., s of L L ~ s e f ~ i n and reason and as such should lead to disclosure of admissible proof. ess Partles to an action are entitled to reasonable discovery of any relevant facts to the action (Alien v. Croweli-Collier PubLCo., 21 N.Y. 2d 403,288 N.Y.S. 2d 449,236 N.E. 2d 430 [1968]). Dlsclosure sought Is requlred 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 261,706 N.Y.S. 43 [N.Y.A.D. lDt 20001) Online postings, are Dept., not shlelded from dlscovery, 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 Dept., A party seeking authorization for access to Facebook [N.Y.A.D. lDt 201I]). postings, In the context of a personal injury action, Is required to specify the evldence sought and, establlsh a factual predicate with respect to the relevancy of the evldence. (McCann v. Harleysvilie insurance Company of New York, 78 A.D. 3d 1624,910 N.Y.S. 2d 614 [N.Y.A.D. 4fh Dept., 20101). The purpose of a Notice to Admit is to ellmlnate those uncontested issues which would take up time and become a burden at trial. A Notice to Admlt Is designed to seek admissions of fundamental Isbues, a party is not obligated to provide admissions which may only be resolved after a full trial or which remains in dlspute between the partles. A Notice to Admit may not be used as subterfuge for obtaining additional discovery (Hodes v. Clty of New York, 166 A.D. 2d 168,666 N.Y.S. 2d 611 [N.Y.A.D. lDt19911, Dept., and Meadowbrook-Rlchman, inc. v. Chicchiello, 273 A.D. 2d 6,709 N.Y.S. 2d 621 [N.Y.A.D. lmt 20001). Fallure to seek other related evldence or provlde proof that the Dept., lnformatlon sought exlsts as data prlor to serving a Notlce to Admlt, results In a flndlng that discovery sought is only a subterfuge for Obtaining additional discovery (Ahroner v. lsreal Discount Bank of New York, 79 A.D. 3d 481,913 N.Y.S. 2d 181 [N.Y.A.D. I Dept., 20101). Pursuant to CPLR 93124, the Court may compel compliance upon failure of a party to provlde dlscovery. It Is wlthln the Court s dlscretlon to determlne whether the materlals sought are material and necessary as legitimate subject of inquiry or are being used for purposes of harassment to ascertaln 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. lmt Dept. 19941). Pursuant to CPLR $3126, there must be a showing of a willful violation of a prior Order for dlscovery or that the failure to provlde dlscovery was willful, contumacious or due to bad faith. This would Include predlcate failure to provide the discovery sought. (Siegman v. Rosen, 270 A.D. 2d 14,704 N.Y.S. 2d 40 [N.Y.A.D. lmt Dept. 2000]). [* 3] Courts have discretion to Impose sanctlons when a party Intentionally, contumaclously or In bad falth destroys evldence prlor to an adversary s Inspection. (Sage Realty Corporation v. Proskauer .Rose LLP, 276 A.D .2d 11,713 N.Y.S. 2d 166 [N.Y.A.D. 1 Dept., 20001). Spollatlon clalms Involving electronically stored evldence apply to the potentlal destruction of evldence in anticipation of litlgatlon and when a party Is on notlce of, a credlble probability that It will become Involved In Iltlgatlon (Voom HD Holdings LLC v. Echostar Satelllte, L.L.C., 93 A.D. 3d 33,939 N.Y.S. 2d 321 [N.Y.A.D. lmt Dept., 20121). Plalntlff objects to the discovery sought by the defendants clalmlng that It Is excessive, palpably Improper and has no factual basis. The Notice to Admit should be vacated or strlcken because no issue was ralsed concernlng soclal medla at hls February 27, 2012 deposition, or after service of the blll of partlculars. The Notlce to Admlt, although not seeking an admission to a materlal Issue, Is being used solely as a disclosure device and Is dupllcatlve of the demand for authorizations. Plalntlff clalms the defendants provided a good faith basis to obtain dlscovery from hls Facebook account and obtained an authorlzatlon. He clalms potentlal Inability to recall user names and has not provided any other social media authorizations. Plaintiff opposes the Demand for the Presewatlon of Electronlcally Stored lnformatlon clalmlng that it Is cumulative after defendants obtained an authorization for access to his Facebook account and an invasion of hls privacy. Defendants oppose plaintiff s motions for protective orders cialmlng that the dlscovery sought Is relevant on the Issue of damages, and that plalntlff has placed his physical condition Into controversy. The Notice to Admit involves an admission of matters that are not in dispute and is proper. Defendants seek authorizations because they are relevant to plalntlffs clalms concernlng hls medical condltlon and damages. Defendants seek to compel or obtain sanctlons cialmlng they are entitled to the dlscovery sought after obtalnlng photographlc postlngs from public Facebook entrles revealing the plalntlff was engaged in physical activities. Defendants claim that the plaintiff Is under an obligation to preserve evldence and prevent routlne destructlon. They clalm that presewatlon of the Blackberry and Its memory card are necessary for authentlcatlon purposes based on potential third party access. Upon revlew of all the papers submitted, thls Court flnds, that the Notice to Admit Is belng used as a dlsclosure devlce, Is dupllcatlve of the demand for authorlzatlons, It therefore shall be stricken. Defendants failed to state a basis for sanctions because plaintiff has provided an authorization for hls Facebook account, Is willing to supplement hls responses, and defendants have not established that the discovery sought has already been destroyed or deleted. Pursuant to CPLR $3124, plalntlff shall be compelled to provide a supplemental response to the demand for authorlzatlons and comply wlth the Demand for the Presenration of Electronlcaliy Stored Information. Plaintiff has not denled that he has other social medla accounts, or provlded an affldavlt denylng thelr exlstence. Plaintiff has posted lnformatlon on Facebook which may contradict assertlons made concernlng the extent of his Injuries In thls actlon. Defendant s need for access to relevant informatlon outweighs plaintiff 8 concerns of privacy, since plaintiff clalms he cannot recall all of his user names for authorlzatlons to obtaln access to other social medla accounts, and this informatlon may be malntalned on the memory card or other metadata, plalntlff shall be requlred to maintain and preserve videos, and metadata, lncludlng memory cards, In connection wlth uploadlng lnformatlon onto all social medla sltes from the date of the accldent to the present. Defendant has not stated a basls for malntalnlng [* 4] and presewlng plalntiffs cellular phone or recordlng devices in addition to preserving the data. Accordingly, it is ORDERED, that plaintiffs motion submitted under Motion Sequence 003, pursuant to CPLR 53103 for a protectlve order, vacatlng or striking the defendants Notlce to Admit, alternatlvely pursuant to CPLR 53123, extending the tlme to provide a response to the Notlce to Admlt and demand for authorizatlons, Is granted to extent that plaintiff Is granted a protective Order striking defendant s Notlce to Admlt, and It Is further ORDERED, that the plalnltffs time to serve a supplemental response to defendants demand for authorizations is extended to September 28,201 2, the remainder of the motion Is denled, and It is further ORDERED, that defendants motion submitted under Motion Sequence 004, pursuant to CPLR 53124 to compel pialntlff to preserve eiectronlcally stored Information or pursuant to CPLR 93126 for sanctions and dlsmlsslng the complaint for intentionally dlsposing of evidence, Is granted to the extent that the plaintiff shall provide supplemental responses to the defendants demand for authorizations and respond to the Demand for the Preservation of Electronically Stored Information, for the period from October 22,2009 to the present, by September 28, 2012, failure to do so shall result In plalntlffs preclusion from testifylng as to damages at the tlme of trial, and It is further ORDERED, that the pialntlff shall preserve and maintain any and all videos, and metadata including memory cards used In connectlon with uploadlng information onto Facebook and other social medla sites from October 22,2009 to the present, except plaintiff shall not be required to preserire the Blackberry ceiiphone or recordlng devices, and It Is further ORDERED, that the remainder of the motion is , and it is further ORDERED, that pialntlff s motion to CPLR 93103 for a protective order va Preservation of Electronically Stored in pialntlffs tlme to flle a note of issues, I compelled to presewe his Blackberry Issue is extended to November 9,2012, and it is ORDERED that the remalnder of the motlon Is denle It, !$further ORDERED that the partles shall appear for a Status Conference, In IAS Part 13, room 307 at 80 Centre Street, New York, New York at 9:30a.m. on October 3 1,2012. ENTER: Dated: August 30,2012 MANUEL J. MENDEZ, J.S.C. Check one: 0 FINAL DISPOSITION X NON-FINAL DISPOSITION Check If appropriate: 0 DO NOT POST 0 REFERENCE

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