Aldrich v Northern Leasing Sys., Inc.

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Aldrich v Northern Leasing Sys., Inc. 2012 NY Slip Op 32193(U) August 17, 2012 Supreme Court, New York County Docket Number: 602803/07 Judge: Martin Shulman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART I ----------r--_l__ll__r____l_____l__llr_l---------l--- --------------- X BRADLEY C. ALDRICH, MICHAEL ARNOLD, ESTELA SAWS and STEPHANIE WEIER, on behalf of themselves and all others similarly situated, Index No: 602803/07 Plaintiffs , -against- Hon. Martln Shulman, JSC: COUNTY CLERK S OFFICE Defendants move for a protectlve order pursuant to CPLR $31 03(a) with respect to plaintiffs demand for the production of certain emails. Specifically, defendants aeek to limit the scope of emails to be produced to those relating to the four named plaintiffs, or to require plaintiffs to pay all costs related to producing the emails. Alternatively, defendants request that they only be required to produce a sample set of the requested emails after a decision is rendered on Plaintiffs impending motion for class certification . . , Plaintiffs oppose the motion. According to defendants, the parties agreed upon search terms and further they agreed that: I) would follow the same protocol for email production as was directed in a related federal action; and 2) the scope of the email search would entail amails to/from the named individual defendants or involving the lSOs who dealt with See U.S. District Judge James S.Gwin s June 3, 2010 decision in Serin, et a/. v Northern Leasing Systems, Inc., et a/.,Case No. 7:06-CV-1525 (JG), at Exh. 1 to Chittur Aff. in Opp.) ( Serin ). [* 3] the Plaintiffs (Lillienetein Aff. in Supp. rrt Exhs. A & B). The only unresolved issue is which party should bear the production costs. Defendants submit two written estimates for the search costs, one totaling $61,943 and the other $104,641, exclusive of attorney review time, (id. at Exh. C). Defendants note that the foregoing agreement was reached prior to plaintiffs counsel advising that the emalls would not be required to move for class certification and request that this court hold determination of thls motion, including the scope of emails to be produced, in abeyance pending decision on the class certification motion. Absent class certification, defendants contend that the discovery plaintiffs seek is Irrelevant to the four plaintiffs claims and the cost of the production will far exceed the total amount of damages these plaintiffs may recover. In opposltlon, plalntlffs Mer alia cite U.S. Bank /Vat/.Assn. v Greenpoint Mtge. Funding, Inc., 94 AD3d 58 (I 2012),for the proposition that the producing party Dept must bear the costs of production, even with respect to electronically stored information such as emails. However, U S .Bank adopts the holding in Zubulake v UBS Wa&urg LLC, 220 FRD 212 (SDNY 2003),and notes that costs may be shifted in the court s discretion upon evaluating the following seven factors: 1. [tlhe extent to which the request is specifically tailored to discover relevant information: 2. [t]he availability of such information from other sources; 3. [tlhe total cost of production, compared to the amount in controversy: 4. [tlhe total cost of production, compared to the resources avallable to each party; 5. [tlhe relative ability of each party to control costs and its incentive to do so; 6. [tlhe importance of the issues at stake In the litigation; and 7. [tlhe relative benefits to the parties of obtaining the information (Zubulake, 217 FRD at 322). -2- [* 4] Plaintiffs alga argue that the emails sought are material to Defendants liability for wilful violations of the FCRA and NYFCRA . . .I (Chittur Aff. in Opp. at 72). However, by decision and order dated August I& 2012, this court inter alia denied plaintiffs motion for class certification and granted defendants cross-motion for summary judgment dismisslng Counts I and V of plaintiffs complalnt alleging defendants willfully obtained plaintiffs consumer credit reports without a permissible purpose in violation of the Falr Credlt Reporting Act ( FCRA ) and its New York counterpart ( NYFCRA ), and further dismissing Counts II and VI of the complaint alleging defendants negligently obtained plaintiffs consumer credit reports wlthout a permissible purpose in violation of the FCRA and NYFCRA.2 In light of this court s dismissal of plaintiffs causes of action alleging wilful and/or intentional violations of the FCRA and the NYFCRA, many of the emails plaintiffs seek now appear to be irrelevant. Moreover, as class certlflcation has been denied, only three3 plaintlffs claims are now before the court and a comparison of the cost of production with the amount in controversy does not warrant imposing this expense upon defendants at this time. Clearly, the scope of emails to be produced must be limltsd as a result of this court s recent rulings and defendants are entitled to a protective order with respect to their production of emails. The foregoing is without Counts I and V were dismissed as against all defendants and Counts 11 and VI were dlsmlssed solely as against the individual defendants. In connection with the class certification motion, this court learned that plaintiff Stephanie Weier has declared bankruptcy and as a result, determination of her claims in this action is automatically stayed. -3- [* 5] prejudice to plaintiffs' right to serve a subsequent demand for the production of emails, tailored to reflect the case's present status. Accordingly, it is hereby ORDERED that defendants' motion is granted to the extent that defendants are granted a protective order with respect to their production of emails as set forth herein. The foregoing constitutes this court's Decision and Order. Courtesy copies of this Decision and Order have been provided to counsel for the parties. Dated: New York, New York August 17,2012 HON. MARTIN SHULMAN, J.S.C. FILED A 6 20 2012 U NEW YORK COUNTY CLERK'S OFFICE