G. Request For Production Of Documents From A Party
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G. Request for Production of Documents From a Party
1. General Standards
A requesting party must specify the documents requested under CPLR 3120 with reasonable particularity.921 No statutory limits exist on how many requests for documents can be served.922 If the disclosure sought is of relevant material and does not come under any of the immunities of CPLR 3101, it will be the rare case in which CPLR 3103 is applied to deny disclosure altogether.923
2. Objection and Waiver
Under CPLR 3122, a party must object to a notice for production under CPLR 3120 within 20 days of the service of the request. Failure to object within this time period waives all objections except for privilege and palpably improper requests.924 Disclosure demands may be palpably improper if they seek irrelevant, overbroad, or burdensome information.925 Extensions to serve discovery do not preserve objections.926
Document requests seeking information of a confidential and private nature are palpably improper. Overbroad requests may rise to this level,927 as do requests seeking potential attorney-client privilege matters.928 A request for the name and address of a taxi medallion owner is not palpably improper. A defendant therefore waived objections to the request by not objecting within the 20-day period of CPLR 3122.929 A party waives objections to disclosure devices by treating them as a nullity and not responding to them.930
A party is bound by the objections raised within the 20-day period of CPLR 3122. It cannot raise new objections on motion.931 The failure to appeal a discovery order makes it the law of the case concerning the proper scope of discovery.932
3. Educational Records
School records are not privileged. However, they are not discoverable unless their relevancy and materiality to the action are established.933
4. Tax Returns
Discovery of tax returns are generally disfavored because they are confidential and private.934 A party seeking such disclosure must make a strong showing of necessity that the tax return is indispensable to the litigation and unavailable from other sources.935 Without such an overriding showing of necessity, the tax returns are not discoverable.936 A court may compel disclosure of tax returns when special circumstances present.937
The rule is less clear when the plaintiff is self-employed.938 Even if tax returns must be produced, the plaintiff is still entitled to an in camera review to minimize the intrusion into unrelated matters.939
5. Cell Phone Records
In a motor vehicle negligence case, cell phone records of the defendant car driver were held discoverable for the two hour period surrounding the accident and should have been produced based on a showing of relevance. Her husband's cell phone records for the same two-hour time period were not discoverable as no such relevance was shown.940
Other courts have denied requests for production of cell phone records as fishing expeditions.941 In light of the Forman decision discussed below, litigants may seek to revisit cell phone discovery law that applied pre-conditions to discovery.
Cell phone use has been admitted on pre-trial motions in limine as circumstantial evidence of comparative negligence.942
6. Social Media
In Forman v. Henkin,943 the Court of Appeals ruled that a court must determine requests for discovery for a plaintiff's private and public Facebook data by traditional discovery principles, not a heightened standard that lower courts had fashioned.944 Under Forman, a defendant need not now identify a specific part of the plaintiff's public Facebook profile that contradicts the plaintiff's stated position in the litigation. Before Forman, under the lower court standards, the plaintiff could restrict her public profile and thereby hide potentially relevant information from the defendant.945 That would be grafting a disclosure requirement into the mix that did not exist in the statute. This was not consistent with the liberal discovery provisions of the CPLR.946 The Court therefore rejected the notion that a plaintiff's or defendant's private Facebook settings determined the scope of discovery under the CPLR.
However, the Court also rejected claims that a plaintiff waived protection in discovery of her Facebook data simply by bringing a personal injury case. Directing disclosure of all of plaintiff's Facebook photographs and communications shared with anyone before and after the injury-producing event would likely yield far more irrelevant than relevant information.947 The courts have always protected litigants from fishing expeditions.948
The Court set forth a two-part test for deciding Facebook discovery issues. First, the Court should consider the nature of the case and the injuries, with any other information specific to the case, to determine whether relevant information likely existed on the plaintiff's Facebook account.949 Next, the Court would balance the potential utility of the information against the privacy or other concerns of the plaintiff. It would then craft an order tailored to the specific case before it, that identified the specific types of material that must be produced, while avoiding disclosure of irrelevant materials.950
Using a personal injury case as an example, the Court of Appeals instructed that lower courts should review the injury-producing event and the injuries, and craft an order for discovery as to each. Limits on the timeframe of the requested discovery might be appropriate. The Court questioned whether photographs or messages from years before the injury would yield discoverable information. The plaintiff could also seek a protective order against disclosure of embarrassing or sensitive materials of marginal relevance.951 But no privacy right independently shielded Facebook account information from disclosure. While such a right might exist, it, like the medical privilege rules of CPLR 4503, yielded to waiver.
In Doe v. Bronx Preparatory Charter School,952 the First Department applied Forman in a social media discovery dispute. It affirmed a lower court order that denied the defendant access to an infant plaintiff's social media accounts for five years before the sexual assault alleged in the case. It also affirmed denial of defendant's access to cell phone records of the infant plaintiff for the two years prior to the incident. The court found that the demands under Forman were overbroad. Defendant had not reasonably tailored them to obtain discovery relevant to the issues in the case. The plaintiff had provided defendant with the infant plaintiff's social media accounts and cell phone accounts for the two months before the date that infant plaintiff was allegedly attacked on defendant's premises. That was a reasonable time frame under the facts of the case.953
The reach of Forman extends beyond personal injury cases. In Renaissance Equity Holdings, LLC v. Webber,954 respondent in a holdover proceeding asserted a defense based on her primarily living at the residence at issue for a two-year period before the death of the primary related tenant. Petitioner served respondent with a supplemental notice to produce under CPLR 3120 that requested, inter alia, all of respondent's posts under her name or assumed names on social media sites including YouTube, Twitter, and Facebook for the two-year period at issue. Respondent objected and the parties headed to court.
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