DEVELOPMENTS IN THE SUBSTANTIVE LAW

by

Alan W. Clark, Esq. Alan W. Clark & Associates, LLC

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NYSBA SEMINARMEDICAL MALPRACTICE 2016

APRIL 14, 2016LONG ISLAND MARRIOTT

PREPARED BY ALAN W. CLARK, ESQ.

DISCOVERY

1. PRESUIT DISCOVERY

a. Medical Records

b. X-rays and diagnostic studies

c. Legal Research

1. Jury Verdict Search

2. Similar claims

3. Same defendants

d. OCA and E-Law for similar cases

e. IDEX through LexisNexis 1-800-543-6862 Expert Witness and Verdict Research Specialists

f. CPLR 3102c-Pre Action Motion to Obtain Records

1. Aid to Identify defendants

2. To preserve evidence

3. Aid in Arbitration

2. INTERNET AND SOCIAL MEDIA

a. Disclosure of Facebook and MySpace records

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1. In Romano v. Steelcase Inc., 2010 NY Slip Op 20388 [30 Misc 3d

426, Justice Spinner, Supreme Court, Suffolk County:

“Ordered, that defendant Steelcase’s motion for an order grantingsaid defendant access to plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deletedpages and related information, is hereby granted in all respects;and it is further ordered, that, within 30 days from the date of service of a copy of this order, as directed herein below, plaintiffshall deliver to counsel for defendant Steelcase a properly executedconsent and authorization as may be required the operators ofFacebook and MySpace, permitting said defendant to gain accessto plaintiff’s Facebook and MySpace records, including any recordspreviously deleted or archived by said operators.”

Justice Spinner explains:

“Like the plaintiff in Sgambelluri, plaintiff herein also claims shesustained permanent injuries as a result of the incident and that she can no longer participate in certain activities or that these injuries have affected her enjoyment of life. However, contrary toplaintiff’s claims, Steelcase contends that a review of the publicportions of plaintiff’s MySpace and Facebook pages reveals thatshe has an active lifestyle and has traveled to Florida andPennsylvania during the time period she claims that her injuries prohibited such activity. In light of this, defendant sought to question plaintiff at her deposition regarding her MySpace and Facebook accounts, to no avail, and following those depositions,served plaintiff with a notice for discovery and inspection requesting, inter alia, “authorizations to obtain full access to andcopies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.” Plaintiff has refused toprovide the requested authorizations.”

“The information sought by defendant regarding plaintiff’s Facebook and MySpace accounts is both material and necessaryto the defense of this action and/or could lead to admissibleevidence. In this regard, it appears that plaintiff’s public profilepage on Facebook shows her smiling happily in a photograph

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outside the confines of her home despite her claim that she hassustained permanent injuries and is largely confined to her houseand bed. In light of the fact that the public portions ofplaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is areasonable likelihood that the private portions of her sites may contain further evidence such as information with regardto her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventingdefendant from accessing plaintiff’s private postings on Facebook and MySpace would be in [*3] direct contravention to the liberal disclosure policy in New York State.”

Justice Spinner states:

“Indeed, as neither Facebook nor MySpace guarantee completeprivacy, plaintiff has no legitimate reasonable expectation of privacy. In this regard, MySpace warns users not to forget thattheir profiles and MySpace forums are public spaces, [FN7] andFacebook’s privacy policy set forth, inter alia, that “[y]ou postUser Content...on the Site at your own risk. Although we allowyou to set privacy options that limit access to your pages, pleasebe aware that no security measures are perfect or impenetrable.”

2. In McCann v. Harleysville Ins. Co. of N.Y. 78 A.D.3d 1524, 910 N.Y.S.2d

614, the Fourth Department states as follows:

“In appeal No. 2, defendant appeals from an order denying itssubsequent motion seeking to compel plaintiff to produce photographs and an authorization for plaintiff’s Facebook accountinformation and granting plaintiff’s cross motion for a protectiveorder. Although defendant specified the type of evidence sought,it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v. BrooklynUnion Gas Co., 150 AD2d 420, 421 [1989]). Indeed, defendantessentially sought permission to conduct “a fishing expedition”into plaintiff’s Facebook account based on the mere hope of finding relevant evidence (Auerbach v. Klein, 30 AD3d 451, 452[2006]). Nevertheless, although we conclude that the court properly denied defendant’s motion in appeal No. 2, we agree with

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defendant that the court erred in granting plaintiff’s crossmotion for a protective order. Under the circumstances presented here, the court abused it’s discretion in prohibitingdefendant from seeking disclosure of plaintiff’s Facebook **2account at a future date. We therefore modify the order in appeal No. 2 accordingly. Present–Martoche, J.P., Lindley,Sconiers, Pine and Gorski, JJ.”

3. In Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16, the First Department

held:

“Supreme Court improvidently exercised its discretion in orderingplaintiff to comply with the outstanding discovery demands. With respect to defendant’s demand for access to plaintiff’s social networking accounts, no showing has been made that “the methodof discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery ofinformation bearing on the claims” (Vyas v. Campbell, 4 AD3d 417, 418 [2004] [internal quotation marks and citation omitted];see also McCann v. Harleysville Ins. Co. of N.Y., 78 AD3d 1524,1525 [2010]).”

4. In Patterson v. Turner Construction Company, et al., 88 A.D.3d 617, 931

N.Y.S.2d 311:

“Holdings: The Supreme Court, Appellate Division, First Department, held that:

(1) court was required to identify information that was relevant,and

(2) relevant postings were not shielded from discovery merely because plaintiff used service’s privacy settings.”

The Court explains:

“Although the motion court’s in camera review established thatat least some of the discovery sought “will result in the disclosureof relevant evidence or is reasonably calculated to lead to the

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discovery of information bearing on the claims” (Abrams v. Pecile,83 A.D.3d 527, 528, 922 N.Y.S.2d 16 [2011] [internal quotation marks and citation omitted]), it is possible that not all Facebook communications are related to the eventsthat gave rise to plaintiff’s cause of action (see **312Offenback v. L.M. Bowman, Inc., 2011 WL 2491371, *2,2011 U.S. Dis. LEXIS 66432, *5-8 [M.D.Pa.2011]). Accordingly, we reverse and remand for a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’salleged restrictions, disabilities, and losses, and other claims.

[2] The postings on plaintiff’s online Facebook account, ifrelevant, are not shielded from discovery merely becauseplaintiff used the service’s privacy settings to restrict access(Romano v. Steelcase Inc., 30 Misc.3d 426, 433-434, 907N.Y.2d 650 [2010]), just as relevant matter from a personaldiary is discoverable (see Faragiano v. Town of Concord,294 A.D.2d 893, 894, 741 N.Y.S.2d 369 [2002])”

4a. More recently, in Spearin v. Linmar, L.P., 129 A.D.3d 528 (2015 N.Y.

App.Div. 1 Dept.), the First Department remands for an in camera review of plaintiff’s st

post-accident Facebook postings finding:

“Defendant established a factual predicate for discovery of relevant information from private portions of plaintiff’sFacebook account by submitting plaintiff’s public profilepicture from his Facebook account, uploaded in July 2014,depicting plaintiff sitting in front of a piano, which tendsto contradict plaintiff’s testimony that, as a result of gettinghit on the head by a piece of falling [***2] wood in July 2012, he can no longer play the piano (see Tapp v.New York State Urban Dev. Corp., 102 AD3d 620, 958NYS2d 392 [1 Dept 2013]; [**157] Richards v. Hertzst

Corp., 100 AD3d 728, 953 NYS2d 654 [2d Dept 2012]).However, the direction to plaintiff to provide access to all of his post-accident Facebook postings is overbroad. We remand for an in camera review of plaintiff’s post-accidentFacebook postings for identification of information

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relevant to his alleged injuries (see Richards, 100 AD3d at 730). Concur-Mazzarelli, J.P., Sweeny,Andrias, Saxe and Richter, JJ.

5. In Kregg v. Maldonado, 98 A.D.3d 1289, 951 N.Y.S.2d 301

“Holding: The Supreme Court, Appellate Division, Fourth Department,held that defendant’s discovery request was overbroad.”

“After initial disclosure exchanges, the Suzuki defendants learned that family members of the injured party had establishedFacebook and MySpace accounts for him and had made Internet postings on his behalf in connection with those accounts.The Suzuki defendants moved, inter alia, to compel the disclosureof the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party.”

The Court explains:

“[2][3] Although CPLR 3101(a) provides for “full disclosureof all matter material and necessary in the prosecution or defense of an action,” it is well settled that a party need not respond to discovery demands that are overbroad (seeOptic Plus Enters, Ltd. v. Bausch & Lomb Inc, 35 A.D.3d 1263, 1263, 827 N.Y.S.2d 895). Where discovery demandsare overbroad, “‘the appropriate remedy is to vacate the entire demand rather than to prune it’” (Board of Mgrs. of thePark Regent Condominium v. Park Regent Assoc., 78 A.D.3d752, 753, 910 N.Y.S.2d 654). In McCann v. Harleysville Ins.Co, of N.Y, 78 A,D,3d 1524, 1525, 910 N.Y.S.2d 614, we addressed a similar discovery demand and concluded that therequest for access to social media sites was made without “afactual predicate with respect to the relevancy of the evidence.(see Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421, 541 N.Y.S.2d 30). Here, as in McCann, there is no contention that the information in the social mediaaccounts contradicts plaintiff’s claims for the diminution of theinjured party’s enjoyment of life (cf. Romano v. Steelcase, Inc. 30 Misc.3d 426, 427, 907 N.Y.S.2d 650). As in McCann, theproper means by which to obtain disclosure of any relevantinformation contained in the social media accounts is a

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narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident. Thus, we deny that part ofthe Suzuki defendants’ motion to compel the disclosure ofthe entire contents of the injured party’s social media accounts,without prejudice to the service of a more narrowly-tailoreddisclosure request.”

6. In Richards v. Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654, the Second

Department ordered an in camera inspection of plaintiff’s Facebook pages based on the

following showing:

“At a deposition conducted in July 2009, McCarthy testified thatshe sustained injuries as a result of the accident that impaired herability to play sports, and **2 caused her to suffer pain that was exacerbated in cold weather. In searching portions of McCarthy’sFacebook profile that were not blocked by privacy settings, theattorneys for the defendants Dunn Trucking, Inc., and Michael Wayne Dean (hereinafter together the Dunn defendants) discovered photographs, dated January 2010, depicting McCarthyon skis in the snow.”

The Court explains:

“The Dunn defendants demonstrated that McCarthy’sFacebook profile contained a photograph that was probativeof the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebookprofile may contain further evidence relevant to that issue.Thus, with respect to McCarthy’s Facebook profile, the Dunn defendants made a showing that at least some of thediscovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discoveryof information bearing on her claim (see Patterson v. TurnerConstr., Co., 88 AD3d 617, 618 [2011]; cf. Abrams v. Pecile,83 AD3d 527, 528 [2011]; McCann v. Harleysville Ins. Co.of N.Y., 78 AD3d 1524, 1525 [2010]). While the Supreme Court directed the injured plaintiffs to provide the Dunn defendants with copies of photographs depicting them

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participating in sporting activities, McCarthy’s Facebook profile or material of a private nature that is not relevant to this action, the Supreme Court should conduct an in camerainspection of all status reports, emails, photographs, and videos posted on McCarthy’s Facebook profile since the dateof the subject accident to determine which of those materials,if any, are relevant to her alleged injuries (see Patterson v. Turner Constr. Co., 88 AD3d at 618). Accordingly, we remitthe matter to the Supreme Court, Kings County, to conductsuch an in camera inspection, and thereafter for a new determination of that branch of the injured plaintiff’s cross motion which was for a protective order pursuant to CPLR3103 striking so much of the demand for authorizations dated March 30, 2010, as related to McCarthy.”

See McKinney’s CPLR Section 3101:50 attached as part of Exhibits.

b. Google Search

c. Doctor/Hospital Websites

d. NYSDOH

e. Professional Association

Websites; ACOG; ASCRS; AHA;American Cancer SocietyNational Cancer Institute

f. Clinical/Practice Guidelines

1. Cancer;

2. Heart Disease

3. Stroke

g. MDConsult.com

1. Textbooks ¸ Authoritative Texts

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h. Uptodate.com

i. Public Med National Library of Medicine

j. Medical Journals

3. DEPOSITIONS, DOCUMENTS AND RECORDS

A. CPLR 3101 SCOPE: Full disclosure of all matter material and

necessary to the defense or prosecution of an action.

In Matter of Kapon v. Koch, 23 N.Y.3d 32, the Court of Appeals states as

follows:

“HN6 We conclude that the “material and necessary” standardadopted by the First and Fourth Departments is the appropriateone and is in keeping with this state’s policy of liberal discovery.The words “material and necessary” are used in section 3101 must “be interpreted liberally to require disclosure, upon request,of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delayand prolixity” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403,406, 235 NE2d 430, 288 NYS2d 449 [1968]). Section 3101(a)(4)imposes no requirement that the subpoenaing party demonstratethat it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to theprosecution or defense of an action, it must be provided by thenonparty.”

B. DISCOVERY FROM NONPARTY PURSUANT TO CPLR

3101(a)(4): The Court of Appeals in Matter of Kapon v. Koch, supra. held:

“1. A party seeking discovery from a nonparty pursuant toCPLR 3101 (a) (4) by service of a subpoena must sufficientlystate the “circumstances or reasons” underlying the subpoena,either on the face of the subpoena itself or in a notice accompanyingit, and a witness who moves to quash the subpoena must establish

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either that the discovery sought is “utterly irrelevant” to the actionor that the “futility of the process to uncover anything legitimateis inevitable or obvious.” Should the witness meet that burden,the subpoenaing party must then establish that the discovery soughtis “material and necessary” to the prosecution or defense of an action. The subpoenaing party is not required to demonstrate thatit cannot obtain the requested disclosure from any other source. Solong as the disclosure sought is relevant to the prosecution or defenseof an action, it must be provided by the nonparty. The subpoenas served upon petitioners, nonparties to actions that respondent hadcommenced in New York and California arising from the sale ofallegedly counterfeit wine, satisfied the notice requirement, as theynot only included the date, time and location of the depositions, butalso affixed copies of the amended complaint in the California actiondetailing the relationship between petitioners’ employer and the defendant in the California action. It was then petitioners’ burden to establish that they were entitled to prevail on the motion to quash,and the trial court did not abuse its discretion in denying petitioners’motion on the ground that they failed to meet their burden of establishing that their deposition testimonies were irrelevant to theCalifornia action.”

C. CPLR 3120 FOR PARTY

1. Notice for Discovery and Inspection from Party. Describe each item

with reasonably particularity. Response due within 20 days after service.

a. Hospital and Medical Records, Reports, etc.;

b. X-rays; CT; MRI; Sonograms; Angiograms; etc.;

c. Billing and Collateral Source Records;

d. Computer entries; Generated E-Mails;

e. Telephone call records; appointment books;

f. Photographs, films, video and audiotapes CPLR 3101(I);

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In Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383 (2003), the

Court of Appeals held:

“We agree with the Second, Third and Fourth Departmentsthat notwithstanding the danger of tailored testimony,section 3101 ( i ) requires full disclosure with *390 nolimitation as to timing, unless and until the Legislaturedeclares otherwise.”

g. Party Statements CPLR 3101(e);

h. Hospital Rules; Guidelines; Protocols;

i. Accident Reports CPLR 3101(g); Incident Reports;

j. Curriculum Vitae;

k. Statements made by party, oral or written to Quality

Assurance Committee about the subject matter of case are discoverable as exception

to Privilege;

l. Informed Consent; Pamphlets or Literature given to patient.

D. OBJECTIONS TO DISCOVERY

1. CPLR 3101( c ) Attorney work product is absolute privilege.

Geffner v. Mercy Medical Center, 125 A.D.3d 802, 4 N.Y.S.3d 283 (2015 App. Div. 2nd

Dept). However, court affirms defendant’s discovery of preaction audio recording of

plaintiff’s interview with defendant doctor stating as follows:

“Attorney work product under CPLR 3101 ( c ), whichis subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as anattorney, which contain his or her legal analysis, conclusions, theory, or strategy (see Matter of New York

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City Asbestos Litig., 109 AD3d 7, 12, 966 NYS2d 420[2013]; Salzer v Farm Family Life Ins. Co., 280 AD2d844, 846, 721 NYS2d 409 [2001]). “[T]he mere fact thata narrative witness statement is transcribed by an attorneyis not sufficient to render the statement ‘work product’”(People v Kozlowski, 11 NY3d 223, 245, 898 NE2d 891,869 NYS2d 848 [2008]). Contrary to the plaintiff’s contention, she did not meet her burden of establishing that the audio recording of an interview she conducted withthe defendant Nicoletta Starks prior to the commencementof the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory,or strategy (see People v Kozlowski, 11 NY3d at 244; Salzer v Farm Family Life Ins. Co., 280 AD2d at 846;cf. Matter of Condon v Niagara County Dist. Attorney’sOff., 115 AD2d 270, 495 NYS2d 863 [1985]; but cf.Manning v Sikorskyj, 204 AD2d 976, 977, 614 NYS2d949 [1994]).

The plaintiff argues, in the alternative [***3] that therecording constitutes trial preparation material, which issubject to a [*803] conditional privilege under CPLR3101 (d) (2). However, the conclusory assertions setforth in her supporting affidavit are insufficient to meether burden of establishing, with specificity, that the recording was prepared “exclusively in anticipation oflitigation” (Bombard v Amica Mut. Ins. Co., 11 AD3d647, 648, 783 NYS2d 85 [2004]; see CPLR 3101[d][2];Agovino v Taco Bell 5083, 225 AD2d 569, 571, 639NYS2d 111 [1996]; Chakmakjian v NYRAC, Inc., 154AD2d 644, 645, 546 NYS2d 650 [1989]).”

2. Attorney client privilege may be waived where sought after material is

used during a deposition and by placing the contents at issue. Benach v. Dedalus Found,

Inc., 129 A.D.3d 479 (2015 App. Div., 1 Dept.) (Use of board minutes of meeting atst

deposition.).

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3. Material Prepared for Litigation Objection is a qualified privilege and

places burden on opponent of discovery to prove with specificity that the material sought

was prepared exclusively in anticipation of litigation. Ligoure v. City of New York, 128

A.D.3d 1027, 9 N.Y.S.3d 678 (2015 App. Div., 2 Dept.) Here, the defendants innd

personal injury action failed to meet their burden that the sought after witness statements

and certain investigation and inspection reports were prepared solely in anticipation of

litigation or trial.

Similarly, in Lalka v. ACA Ins., Co., 128 A.D.3d 1508, 9 N.Y.S.2d 504 (2015

App. Div., 4 Dept.) a SUMA action, the court granted plaintiff discovery of documentsth

created in claim file presuit including reports prepared by attorneys to aid insurer in

deciding whether to pay or reject the claim are made in regular course of business but

denies plaintiff’s request for disclosure of claim file created after commencement of

action.

The physician-patient privilege in CPLR 4504(a) may be waived where adequate

showing is made pursuant to CPLR 3101(a) that sought after disclosure is material and

necessary to the prosecution or defense of an action. In Cole v. Panos, 128 A.D.3d 880,

11 N.Y.S.3d 179 (2015 App. Div. 2 Dept) the Second Department held plaintiff wasnd

entitled to discovery of case logs of all surgical procedures performed by defendant

physician on two separate dates, redacting the names of nonparty patients and other

identifying information.

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The Court held:

“HOLDINGS: [1]-Although the listing of each surgicalprocedure performed by the physician during the courseof the surgeries he performed on the nonparty patientswas privileged, CPLR 4504(a), plaintiff established thatthe subject information was material and necessary (CPLR 3101(a)) in the prosecution of her medical malpractice action and that circumstances warrantedovercoming the privilege; [2]-Privacy interests of thenonparty patients and the policy objectives of CPLR4504(a) would not be undermined by disclosure of thesubject information, as the case logs would be redactedto eliminate any reference to the nonparty patients’names and other identifying information.”

E. CPLR 3102 FOR NONPARTY

a. Must serve Notice Stating the Circumstances and reasons for

discovery (CPLR 3101(a)4);

b. Serve Subpoena Duces Tecum on at least 20 days notice and

include HIPAA Authorization;

c. All parties must be served;

d. Within five (5) days of compliance, notify all parties that items

are available for inspection.

e. In Kooper v. Kooper, 74 A.D.3d 6, 901 N.Y.S.2d 312, a

divorce action, the Second Department addresses the issue as follows:

“Beyond the requirement of materiality and necessitywhich defines the scope of permissible discovery, adisclosure request directed to a nonparty implicatesconsiderations in addition to those governing discoveryfrom a party. These additional considerations are at

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the heart of this appeal.”

The Court explains as follows:

“In 1984, the Legislature amended CPLR 3101 (a) (4)to eliminate the “on motion” and “special circumstances”language, substituting therefor the requirement that suchdisclosure be obtained “upon notice stating the circumstancesor reasons such disclosure is sought or required” (L 1984,ch 294 § 2 [eff Sept. 1, 1984] [hereinafter the 1984 amendment]). The 1984 amendment, however, did not change the requirement that a party obtain “[a] court orderupon a showing of special circumstances” when further disclosure is sought concerning the expected testimonyof an expert witness; this is the sole remaining subsectionwith the “special circumstances” language (CPLR 3101 [d] [1] [iii]).”

Further:

“In 2002, the Legislature amended CPLR 3120 (L2002, ch 575, § 2 [eff Sept. 1, 2003] [hereinafter the 2002 amendment]), dispensing with the need to make a motionand requiring only service of a subpoena duces tecum forthe production of documents in the custody and control ofa nonparty witness (see Connors, Practice Commentaries,McKinney’s Cons Laws of NY, Book 7B, CPLR C3120:1).The 2002 amendment brought nonparty document productioninto line with the procedure for compelling a nonparty witness to produce documents during the nonparty’s deposition, which requires service of a subpoena without a motion or court order (see CPLR 3106 [b]; 3111).”

The Court states:

“Subsequent to the statutory amendments, this Courthas adhered to the view that a subpoena duces tecumserved on a nonparty is “facially defective” and unenforceable if it neither contains, nor is accompaniedby, a notice stating the circumstances or reasons such disclosure is sought or required (Matter ov American

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Express Prop. Cas. Co. v. Vinci, 63 AD3d 1055, 1056[2009]; see e.g. Wolf v. Wolf, 300 AD2d473 [2002];Knitwork Prods. Corp. v. Helfat, 234 AD2d 345, 346[1996]). The Appellate Division, Fourth Department,is in agreement (see Wilson v. City of Buffalo, 298 AD2d994, 997 [2002]; Rickicki v. Borden Chem., 195 AD2d986 [1993]). The First Department has also so held(see DeStafano v. MT Health Clubs, 220 AD2d 331 [1995]). but subsequently, in addressing a question leftopen in DeStefano, determined that the lack of suchnotice is not fatal and may be remedied by the showingof circumstances and reasons made in response to a motion to quash the subpoena (see Velez v. Hunts PointMulti-Serv. Ctr., Inc., 29 AD3d at 111). In Velez, theCourt held that, “although the better practice, indeed themandatory requirement of CPLR 3101 (a) (4), is to include the requisite notice on the face of the subpoena orin a notice accompanying it,” the lack of notice in the subpoena at issue in that case did not constitute grounds to quash it given the sufficiency of the showing in oppositionTo the motion (id.). The underlying rationale, in part, isthat the statutory scheme places the burden on the partyor nonparty challenging a subpoena served pursuant to CPLR 3120 to come forward with objections within 20days or else waive them (see CPLR 3122; Connors, PracticeCommentaries, McKinney’s Cons Laws of NY, Book 7B,CPLR C3101:23). The Appellate Division, Fourth Department, in dicta, has followed the First Department’sreasoning on this issue (see Hauzinger v. Hauzinger, 43AD3d 1289, 1290 [2007] affd 10 NY3d 923 [2008]).”

In Kooper, supra., the Court overrules Dioguardi in holding:

“On a motion to quash a subpoena duces tecum orfor a protective order, in assessing whether the circumstances or reasons for a particular demand warrantdiscovery from a nonparty, those circumstances and reasons need not be shown to be “special circumstances.””

“Since Dioguardi, this Court has deemed a party’s inabilityto obtain the requested disclosure from his or her adversary

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or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. Amotion to quash is, thus, properly granted where the partyissuing the *17 subpoena has failed to show that the disclosure sought cannot be obtained from sources other thanthe nonparty (see Moran v. McCarthy, Safrath & Carbone, P.C., 31 AD3d at 726; Tannenbaum v. Tenenbaum, 8 AD3dat 360; Lanzello v. Lakritz, 287 AD2d at 601; Tsachalis v. City of Mount Vernon, 262 AD2d at 401; Matter of ValidationReview Assoc. [Berkun-Schimel], 237 AD2d at 615), and properly denied when the party has shown that the evidence cannot be obtained from other sources (see Cespedes v.Kraja, 70 AD3d at 722; Tenore v. Tenore, 45 AD3d at 571-572; Thorson v. New York City Tr. Auth., 305 AD2d at666; Bostrom v. William Penn Life Ins. Co. of N.Y., 285AD2d at 483). Our cases have not exclusively relied on thisconsideration, however, and have weighed other circumstanceswhich may be relevant in the context of the particular case indetermining **6 whether discovery from a nonparty is warranted(see Abbadessa v. Sprint, 291 AD2d 363 [2002] [conflict in statements between the plaintiff and nonparty witness]; Mikinberg v. Bronsther, 256 AD2d at 502 [unexplained discontinuance of the action against the witness, formerly a party]; Patterson v. St. Francis Ctr. at Knolls, 249 AD2d 457 [1998] [previous inconsistencies in the nonparty’s statements]).” (Emphasis added in bold)

The Third Department In the Matter of Troy Sand & Gravel Company, Inc. v.

Town of Nassau, 80 A.D.2d 199; 912 N.Y.S.2d 798, agrees with the rationale in

Kooper, supra.

In Velez v. Hunts Point Multi-Serv. Ctr., Inc., 29 A.D.3d 104, 811 N.Y.S.2d 5,

the First Department states:

“The principal issue on this appeal is whether, in the circumstancespresented, the motion court properly granted motions to quashcertain nonparty subpoenas duces tecum on the ground that they were defective on their face because they failed to comply with

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CPLR 3101 (a) (4), which requires that a request for disclosurefrom “any other person,” i.e., a nonparty witness, be “upon notice stating the circumstances or reasons such disclosure issought or required.” For the following reasons, we reverse themotion court’s order to the extent appealed from and hold that the motions to quash the subpoenas should have been denied in all respects.”

“Thus, where the person to be deposed is not a party, he or she must be served with a subpoena issued pursuant to CPLR 3106(b). Where production of “books, papers and other things” is also sought in conjunction with his or herdeposition, a notice or subpoena pursuant to CPLR 3111 isthe appropriate device, and the party serving the subpoenashould describe the items sought and be certain to make thesubpoena unambiguous, requiring both attendance by the recipient and production of the item. If the party seeking thedisclosure is not interested in taking a deposition, but merelywants a nonparty witness to produce for discovery and inspection a paper or other tangible item in his or her possession,the remedy is an outright subpoena under CPLR 3120 (see Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3111:1).”

The Court explains:

“CPLR 3120 was amended, effective September 1, 2003 (L2002, ch 575, §2). The amendments dispense with the requirement of a motion and now simply require service of a subpoena duces tecum on a nonparty witness for production of any designated documents in possession, custody or controlof the nonparty served, specifying the time, place and mannerof making the inspection, copy, test or photograph, and setting forth individually or by category the items to be inspectedand describing each item and category with reasonable particularity. Nothing in the amendments to CPLR 3120, however, dispenses with the general requirement of CPLR 3101 (a) (4) that, where disclosure is sought from a nonparty, the nonparty shall be given notice stating the circumstances or reasons such disclosure is sought *110 orrequired. The purpose of such requirement is presumably

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to afford a nonparty who has no idea of the parties’ dispute or a party affected by such request an opportunity to decide how to respond.”

The Court holds:

“Accordingly, we now reach the question and hold that theCPLR 3101 (a) (4) notice requirement applicable to subpoenasduces tecum issued pursuant to CPLR 3111 is equally applicable to nonparty subpoenas issued pursuant to CPLR 3120.Nevertheless, although the better practice, indeed the mandatoryrequirement of CPLR 3101 (a) (4), is to include the requisitenotice on the face of the subpoena or in a notice accompanying it, given the evidence presented by Hunts Point in opposition,the motions to quash the subpoenas should have been denied(cf. Matter of Stevens Imports v. Lack, 52 AD2d 928 [1976]affd41 NY2d 939 [1977]).”

The Court of Appeals, in Matter of Kapon v. Koch, supra., resolves the conflict

among the departments, as follows:

“HN6 We conclude that the “material and necessary” standardadopted by the First and Fourth Departments is the appropriateone and is in keeping with this state’s policy of liberal discovery.The words “material and necessary” are used in section 3101 must “be interpreted liberally to require disclosure, upon request,of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delayand prolixity” (Allen v. Crowell-Collier Publ. Co., 21 NY2d 403,406, 235 NE2d 430, 288 NYS2d 449 [1968]). Section 3101(a)(4)imposes no requirement that the subpoenaing party demonstratethat it cannot obtain the requested disclosure from any other source. Thus, so long as the disclosure sought is relevant to theprosecution or defense of an action, it must be provided by thenonparty.”

“HN8 “An application to quash a subpoena should be granted‘[o]nly where the futility of the process to uncover anythinglegitimate is inevitable or obvious’...or where the information sought is’utterly irrelevant to any proper inquiry’ “ (Anheuser-Busch

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Inc. v Abrams, 71 NY2d 327, 331-332, 520 NE2d 535, 525 NYS2d816 [1988], citing Matter of Edge Ho Holding Corp., 256 NY 374,382, 176 NE 537 [1931] and Matter of La Belle Creole Intl., S.A.v Attorney-General of State of N.Y., 10 NY2d 192, 196, 176 NE2d705, 219 NYS2d 1 [1961], quoting Matter of Dairymen’s League[**39] Coop. Assn., Inc. v Murtagh, 274 App Div 591, 595, 299NY 634, 86 NE2d 509 [1948], affd 299 NY 634, 86 NE2d 509 [1949]). It is the one moving to vacate the subpoena who has theburden of establishing that the subpoena should be vacated undersuch circumstances (see Matter of Dairymen’s League Coop. Assn.,274 App Div at 595-596; see also Ledonne v Orsid Realty Corp.,83 AD3d 598, 599, 921 NYS2d 249 [1 Dept 2011]).”st

F. CPLR 3122 OBJECTION TO DISCLOSURE

a. Must be made within 20 days;

b. Response must state with reasonable particularity basis for

objection and each item objected to;

c. If no HIPAA authorization attached to Subpoena Duces Tecum

medical provider need not respond and Subpoena must so state;

d. Must affirmatively state documents withheld and reason for

same;

e. Party requesting disclosure may move pursuant to CPLR 3124

or Section 2308 to compel compliance.

G. CPLR 3122-a CERTIFICATION OF BUSINESS RECORDS

1. Admission of Business Records pursuant to a Subpoena Duces Tecum

under Rule 3120;

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2. Must be Affidavit by Custodian authorized to make Certification

stating:

a. Accurate versions of documents;

b. Records are complete or describe what is missing and the

reason;c. Records made in the regular and ordinary course of business.

3. Notify parties of records available for inspection at least 30 days

before Trial;

4. Objection to be made at least 10 days before Trial

H. CPLR 3101(f)

a. Notice for Insurance Disclosure

I. DEMAND FOR WITNESSES

To the care and treatment; conversations; injuries who defendants intend

to call at Trial.

J. CPLR 3101(d)

a. Demand for Expert Witness Information

1. Qualifications of each expert;

2. The subject matter of each expert’s testimony;

3. The substance of the facts and opinions upon which the

expert will testify;

4. Summary of grounds and basis for expert’s opinion

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5. Preclusion of expert disclosure on the eve of trial is not warranted

where there is no showing disclosing party intentionally or wilfully violated a court

directive or chose not to disclose and there is no showing of prejudice to opponent.

Arcamone-Makinano v Britton Prop., Inc., 117 A.D.3d 889 (2014 N.Y. App. Div., 2nd

Dept.)

6. Objection at time of trial to preclude expert testimony on grounds that

disclosure did not provide adequate specificity of cause of death was denied since no

objection was raised by plaintiff upon receipt of defendant’s expert disclosure. Rivera v

Montefiore Med. Ctr., 123 A.D.3d 424, 998 NYS2d 321 (2014 App. Div., 1 Dept.) st

The First Department explains that:

“HN1 CPLR 3101 (d) (1) requires expert disclosure, “inreasonable detail,” of “the substance of the facts and opinionson which each expert is expected to testify,” in order to provide the plaintiff with the defendant’s theories of the casein advance of [*426] trial (see Chapman v State of New York,189 AD2d 1075, 593 NYS2d 104 [3d Dept 1993]). Here, uponreceipt of this 3101 (d) statement, the only objection that plaintiff voiced was that the expert’s qualifications failed to include the dates of his residency, which deficiency defendantthen cured. [***4] Plaintiff neither rejected the documentnor made any objection to the lack of specificity regarding thecause of death.

Having failed to timely object to the lack of specificity indefendant’s expert disclosure statement regarding the causeof the decedent’s death, plaintiff was not justified in assumingthat the defense expert’s testimony would comport with theconclusion reached by the autopsy report, and plaintiff cannotnow be heard to complain that defendant’s expert improperlyespoused some other theory of causation for which there wassupport in the evidence.”

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K. CPLR 3106

a. Notice for Deposition

L. Examples of Discovery Demands and relevant Statutes follow as

Exhibit “A”

4. AUTHORITATIVE LITERATURE

a. In Ithier v Solomon, 59 A.D.2d 935, 399 N.Y.S.2d 450 (App.Div. 2 nd

Dept., 1977):

“The Supreme Court, Appellate Division, Second Department,held that questions whether doctor recognized any books, authorities or works as authoritative or standard in field oftuberculosis, what books doctor considered authoritative in field of tuberculosis, and what books doctor had studied in medical school or subsequent thereto dealing with tuberculosis were too broad, and did not require answer by doctor.”

Further, the Court states:

“It is well settled that an expert may be questioned through theuse of a scientific work or treatise. However, in order to lay afoundation for the use of such material, he must first admit to its authoritativeness (People v. Feldman, 299 N.Y. 153, 85 N.E.2d 913; Mark v. Colgate Univ., 53 A.D.2d 884, 385 N.Y.S.2d 621; Hastings v. Chrysler Corp., 273 App.Div. 292,77 N.Y.S.2d 524; Richardson, Evidence (Prince 10 ed.), sth

373). In the case at bar, appellant was never confronted with a specific work or treatise and asked whether he considered itauthoritative. Rather, he was asked which books he consideredauthoritative. These question were altogether too broad.”

b. In Bryant v. Bui, 265 A.D.2d 848, 695 N.Y.S.2d 790 (App.Div. 4 th

Dept., 1999):

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“The Supreme Court, Appellate Division, held that: (1) physicianwas properly ordered to provide names of books he foundauthoritative”

Further, the Court states:

“With respect to question (a), defendant stated that there were“two, three or four” books that he found authoritative, and thusthe court properly ordered him to provide the names of those books. Any material that may be used as evidence-in-chief orfor rebuttal or impeachment is discoverable (see, CPLR 3101;Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 407288 N.Y.S.2d 449, 235 N.E.2d 430). An expert may be cross-examined on a textbook only after the expert hasaccepted the textbook as authoritative (Labate v. Plotkin,195 A.D.2d 444, 445, 600 N.Y.S.2d 144).”

c. AUTHORITATIVE definitions:

1. Able to be trusted as being accurate or true; reliable;

2. Synonyms; dependable, trustworthy, sound, authentic, valid

3. “Rule 803. Exceptions to the Rule Against Hearsay- -Regardlessof Whether the Declarant is Available as a Witness

The following are not excluded by the rule against hearsay, regardlessof whether the declarant is available as a witness:

“(18) Statements in Learned Treatises, Periodicals, or Pamphlets.A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witnesson cross-examination or relied on by the expert on directexamination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony,or by judicial notice.

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If admitted, the statement may be read into evidence by not receivedas an exhibit.”

Also see Commentary annexed to Exhibits.

5. ARON’S AUTHORIZATIONS

A. In Arons v. Jutkowitz, 9 N.Y.3d 393, 880 N.E.2d 831, 850 N.Y.S.2d 345:

“Holdings: The Court of Appeals, Read, J., held that:

(1) plaintiffs could be compelled to authorize defense counselto conduct ex parte, off-the-record interviews with nonpartytreating physicians;

(2) HIPAA privacy rule does not prevent informal discovery; and

(3) conditions included in trial courts’ orders, e.g. that defense counsel hand over to plaintiffs copies of physicians’ written statements, were improper.”

B. The Court further states:

“FN6. We take no issue with those portions of the Aronsand Kish orders that required defense counsel to identifythemselves and their interest, to limit their inquiries to thecondition at issue, and to advise physicians that they need not comply with the request for an interview (see supra at410, 850 N.Y.S.2d at 352, 880 N.E.2d at 838). We believethat the execution of a valid authorization and the fact that the physician, under HIPAA, is permitted, but not required,to grant the interview will address these concerns in the future.”

C. In Porcelli v. Northern Westchester Hospital Center, 65 A.D.3d 176, 882

N.Y.S.2d 130 (App.Div. 2 Dept, 2009):nd

“Holding: The Supreme Court, Appellate Division,McCarthy, J., held that statement that purpose of informal,

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ex parte interview was solely to assist defense counsel attrial and that participation was voluntary could be includeddirectly on HIPAA-compliant authorization form.”

D. The Court further states:

“The overall tenor of the decision of the Court of Appealsin Arons strongly suggests that it is of primary importancefor the treating physician (or other health care professional)to be informed that the purpose of the interview is to assist defense counsel during the litigation and that his or her participation is voluntary. Providing such information best ensures that an individual who agrees to be interviewedwill not unwittingly disclose privileged information regardinga medical condition not at issue in the litigation. Which partyconveys such message and in what manner is of secondaryimportance. Accordingly, we hold that the method the plaintiffsemployed here-placing the admonition directly on the HIPAAcompliant authorizations and highlighting the language-is **137consistent with Arons, as it clearly serves the primary purposeof conveying the information in a manner that best prevents the accidental disclosure of privileged information.”

E. In Akalski v. Counsell, 29 Misc.3d 936, 908 N.Y.S.2d 537:

“Holdings: The Supreme Court, Westchester County,Alan D. Scheinkman, J., held that:

(1) authorization required under Health Insurance Portability and Accountability Act (HIPAA) could not becombined with authorization required under state law topermit ex parte interview with plaintiff’s treating physician;

(2) state law authorization had to identify individual attorneywho would conduct interview; and

(3) physician was not required to wait until after filing of noteof issue to obtain authorization.”

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The Court further states:

“Moreover, the Court of Appeals in Arons, specifically notedthat it did not take issue with those portions of the SupremeCourt orders on the appeals before it to the extent that the courts “required defense counsel to identify themselves andtheir interest, to limit their inquires to the condition at issue,and to advise physicians that they need not comply with therequest for an interview” (Arons, 9 N.Y.3d at 416 n. 6, 850N.Y.S.2d 345, 880 N.E.2d 831). To that end, the Office ofCourt Administration in response to Arons, created a separateform from the HIPAA authorization, entitled “Authorizationto Permit Interview of Treating Physician by Defense Counsel”(UCS-575 [2/08])(hereinafter “Arons authorization”). TheArons authorization is addressed to an individual physician andincludes notices not required in the HIPAA authorization, butrequired in the Arons context (see Porcelli v. Northern WestchesterHosp. Center, 65 A.D.3d 176, 882 N.Y.S.2d 130 [2 Dept.]),nd

including notices that the interview is being sought to assist defendantin the defense of a lawsuit against the patient, the authorization isnot at the request, of the patient, and the interview is entirely voluntary.”

The Court further states:

“As to the identity of the person authorized to request thedisclosure, the Court of Appeals in Arons stated that “we assume[ ] that attorneys would make their identity and interest knownto interviewees and comport themselves ethically’” ( 9 N.Y.3d at410, 850 N.Y.S.2d 345, 880 N.E.2d 831, *940 quoting Niesig v.Team I, 76 N.Y.2d 363, 376, 559 N.Y.S.2d 493, 558 N.E.2d 1030).Also, as noted earlier, the Court of Appeals also stated that “[w]etake no issue with those portions of the Arons and Kish orders thatrequired defense counsel to identify themselves and their interest...”(9 N.Y.3d at 416 n. 6, 850 N.Y.S.2d 345, 880 N.E.2d 831). Subsequently, the Appellate Division, Second Department, in Mahr v. Perry, 74 A.D.3d 1030, 903 N.Y.S.2d 148 [2 Dept.],nd

affirmed the denial of a motion seeking to compel plaintiff toprovide “law firm specific,” rather than “attorney specific,”authorizations pursuant to Arons.”

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F. In LaRose v. Cricchio, 33 Misc.3d 865, 935 N.Y.S.2d 245:

“Holdings: The Supreme Court, Rockland County, Alfred J. Weiner, J., held that:

(1) in matter of first impression, HIPAA-compliant authorizations were prerequisite to physician’s deposition,but

(2) sanctions were not warranted.

G. The Court further states:

“The Court finds that Plaintiffs’ decision to withhold Arons authorizations until Defendant submits to a deposition isinconsistent with the Arons precedent establishing a Plaintiff’s unqualified obligation to furnish such authorizationsonce he or she affirmatively places his or her mental or physical condition in issue. Plaintiffs’ concerns that Defendant’sdeposition testimony may be “colored” or “skewed” by informalcommunications with Plaintiff’s decedent’s non-party treatingphysicians does not warrant establishing Defendant’s depositionas a condition precedent to the acquisition of Arons authorizations. Plaintiff, having waived the physician–patient privilege in bringing this action, cannot place further conditionsupon furnishing *869 HIPAA-compliant authorizations otherthan the mandates enumerated in Arons.

Given the foregoing, the Court finds that Plaintiffs have offeredno factual reason why Defendant should not be permitted tohave an off-the-record interview with the non-party treatingphysician(s) or health-care providers of Plaintiff’s decedent priorto Defendant’s deposition.”

H. In Miller v. Kingston Diagnostic Center, 33 Misc3d 496, 929 N.Y.S.2d

668:“Holding: The Supreme Court, Ulster County, Gerald W. Connolly, J., held that letter previously sent by plaintiff’scounsel did not interfere with defense counsel’s right toask for ex parte interview with treating oncologist.”

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The Court sanctioned the following letter:

“Plaintiff’s counsel sent all defendants such authorizations,also sending, however, a letter dated March 23, 2011 to Dr. Donovan. Such letter provided, in pertinent part, as follows:

“Enclosed please find copy of the “Aron’s” authorization,executed by Harold **670 G. Miller, on behalf of the Estate of Dorothy Miller which the court has directed we provide to defense counsel. This authorization permits the defense attorney an opportunity to speak with you regardingthe care and treatment you rendered to Ms. Miller, relativeto the incident in question.

The Courts are clear that it is up to the treating physicianto make a decision as to if, when and where to meet. TheCourt also clearly permits a doctor to charge whatever isreasonable and necessary for such meeting to compensatethe doctor for his lost time.

*498 As the attorney representing the plaintiff, I am requesting the right to be present when you speak with defense counsel.

I assure you and defense counsel that I will not speak, comment or in any way interfere with your conversation.

Ultimately, the decision to meet with a defendant’s attorney,with or without the presence of the plaintiff’s counsel, is completely up to you. You are not under any obligation to meet with the defense attorney or to allow me to be presentif you decide to meet with the defense attorney.

By copy of this letter to defense counsel, I am putting themon notice of my request that I will await notification, if any, from your office should you determine to permit me tobe present if you decide to speak with defense counsel.”“

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The Court explains:

“Here, the letter from plaintiff’s counsel is not threatening or intimidating. Such letter notes that the treating physician’sparticipation in such interview is voluntary and requests the right to be present, noting, however, that such presence by plaintiff’s counsel is not required. Such letter was made on notice to defendants’ counsel and such letter requested no further communication unless such physician was willing to permit plaintiff’s counsel to be present at the interview.”

Recently, in Charlap v. Khan, 41 Misc.3d 1070, 972 N.Y.S.2d 871:

“Holding: The Supreme Court, Erie County, John M. Curran,J., held that letter sent by counsel in name of plaintiff to non-party treating physicians requesting to be present during interview with defendants did not violate rules of conduct.”

I. This Court explains:

“[1][2] Arons did not establish a common law right to conducta private interview of a non-party witness. To insist that plaintiff’s counsel not request of a witness to be present atdefense counsel’s interview is to assert that a plaintiff has aduty to forbear from doing so. Arons did not impose any suchduty. Further, any insistence that plaintiff’s counsel has such aduty is the equivalent of demanding that plaintiff’s counsel forebear from presenting his or her client with “competence”(Rule 1.1) and “diligence” (Rule 1.3), as required by the Rules.The assertion of one person’s legal right in a court of law should be understood in the adversarial process as ordinarilylimiting the rights of the adverse party or imposing a duty thereon.Arons did no such thing in merely indicating that an attorney “may” conduct interviews.”

J. The following ethics opinions are discussed:

“There are a number of New York ethics opinions which arepertinent to communications with non-party witnesses. The most helpful was issued in 2009 by the Association of the Bar

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of the City of New York (N.Y. City Bar Assn. Comm, on Prof.Ethics Formal Op. 2009-5 [2009]). The question addressedin that opinion was whether a lawyer may ask a witness whohas not been subpoenaed and not otherwise under court processto refrain from voluntarily providing information to other partiesto the litigation. The Committee on Professional and JudicialEthics (“Committee”) answered this question in the affirmative.The Committee found that a lawyer making such a request toa non-party witness “does not flout any court’s authority” andthat, in the absence of any rule prohibiting the conduct, “lawyers may feel constrained to make such requests in furtherance of the interest of their clients.” The Committee further recognized:“In our adversary system, all parties to a litigated dispute are granted equal access to sources of proof” and that “witnesses donot belong to a plaintiff or defendant.”

K. “The Court concludes that the letter which is the subject of thismotion does not cross the boundaries set by the Rules. The letter does not advise the witness to *882 do anything improperunder the Rules. It does not even express a preference that the witness not meet with the adversary, which in any event would be permissible under Op. 2009-5. Rather, at most, it is a requestto be present during an interview, a request which may or may notbe honored by the witness. For these reasons, the Court deniesthe motions but declines to opine at this time as to whether theletter may be used for credibility purpose during cross examinationof the plaintiff (see e.g. David B. Harrison, Annotation, Admissibility and Effect, on Issue of Party’s Credibility or Meritsof His Case, of Evidence of Attempts to Intimidate or InfluenceWitness in Civil Action, 4 A.L.R.4th 829).”

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L. Arons Authorization form OCA is annexed to Exhibits.

Dated: Levittown, New York March 9, 2016

Respectfully submitted,

ALAN W. CLARK, ESQ.THE LAW FIRM OF ALAN W. CLARK& ASSOCIATES, LLC650 Wantagh AvenueLevittown, New York 11756(516)579-6500awc@awclaw.com

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