Commercial Division Blog

Posted: February 4, 2022 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Christopher R. Dyess, Joshua Wurtzel, Hillary S. Zilz / Categories Discovery/Disclosure, NYLJ Eastern District Roundup

Plaintiff Need Not Turn Over Personal Devices for Forensic Imaging in Discovery

On January 11, 2022, Justice Margaret Chan of the New York County Commercial Division issued a decision in Ferreira v. Hudson River Healthcare, Inc., 2022 N.Y. Slip Op. 30084(U), holding that the defendant in an illegal-wage-practices cases was not entitled to disclosure of the plaintiff's smart phones and tablets for forensic imaging, nonpublic social media activity, and diaries, but that the defendant was entitled to the plaintiff's calendar and appointment books, explaining:

Next, defendant seeks access to plaintiff's smart phones and tablets for forensic imaging. This portion of defendant's motion is denied as it has "failed to show that the request was reasonably calculated to yield information material and necessary to its defense" (see e.g. Evans v Roman, 172 AD3d 501, 502, 100 N.Y.S.3d 26 [1st Dept 2019]; Pecile v Titan Cap. Grp., LLC, 113 AD3d 526, 526, 979 N.Y.S.2d 303 [1st Dept 2014]; see also AllianceBernstein L.P. v Atha, 100 AD3d 499, 500, 954 N.Y.S.2d 44 [1st Dept 2012] [noting that providing a smart phone "would disclose irrelevant information that might [*8] include privileged communications or confidential information"]).

Next, the portion of defendant's motion to compel production of plaintiff's social media activity during the period she claims she worked uncompensated hours is denied at this time with leave to renew after the completion of other discovery and depositions. To access plaintiff's social media accounts, defendant must lay the factual predicate to demonstrate that its requests are reasonably calculated to yield material and necessary information, which defendant has so far failed to do having only offered speculative and generalized assertions that the information might contradict plaintiff's claims (Tapp v New York State Urb. Dev. Corp., 102 AD3d 620, 620, 958 N.Y.S.2d 392 [1st Dept 2013]; Pecile, 113 AD3d at 527; see also Fawcett v Altieri, 38 Misc 3d 1022, 1025, 960 N.Y.S.2d 592 [Sup Ct, NY County 2013] [denying discovery of social media information, at least prior to depositions, where it was likely that the information obtained would not be relevant to the case]). Nonetheless, the portion of defendant's motion to compel plaintiff to identify her social media accounts so that defendant may view the public portions thereof is granted.

In a similar vein, the portion of defendant's motion to compel production of plaintiff's diaries is denied (Lopez v Bendell, No. 156292/2017, 2021 N.Y. Misc. LEXIS 880, 2021 WL 826394, at *4 [Sup Ct, NY County 2021] [rejecting discovery of personal diary entries as "overbroad and burdensome"]), [*9] with leave to renew after the completion of other discovery and depositions.

The portion of defendant's motion that seeks access to plaintiff's calendar and appointment books used or maintained during the time she claims she worked [**5] uncompensated hours is granted (see e.g. Lazan v Bellin, 95 A.D.2d 751, 464 N.Y.S.2d 191 [1st Dept 1983]). This demand is reasonably calculated to produce relevant evidence.

Whether a discovery demand is overbroad will turn on the specific facts of the case and the allegations and defenses in the pleadings. Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning a motion to compel in the Commercial Division.