Discovery

Need Surveillance Footage To Frame A Complaint? Well, That’s Too Bad (NY)

In Villani v. Rite Aid of N.Y., Inc., Index no. 155613/2022, the Hon. Arlene P. Bluth of New York County Supreme Court has denied a petitioner’s request for a pre-action disclosure of in-store surveillance video from an October 2021 accident. The petitioner claims she suffered severe facial and eye injuries when she collapsed and struck her head in a Rite Aid in Manhattan after fainting from a COVID-19 booster. The petitioner argued that the surveillance video was material and necessary to frame her complaint because the staff present at the time of her accident may be responsible for her injuries, and the video will assist in identifying the employees that were present at the time. In opposition, respondent argued that the petition presents sufficient facts in framing a complaint, such as the time, date, and location of the incident. In denying petitioner’s request, Hon. Arlene P. Bluth explained that the purpose of a pre-action disclosure is to assist a potential plaintiff with identifying the specific causes of action that may be asserted or with identifying potential defendants. However, petitioner here demonstrated both. The petitioner knows when the incident happened, where it happened, and the events immediately preceding the incident, and predicts she will pursue a negligence claim. The petitioner’s request for surveillance to identify the employees who were working that day presumes these employees were wearing nametags and the ability to see the names. As such, identification is better suited for a plenary action rather than pre-action disclosure of surveillance. This case demonstrates that a pre-action discovery for surveillance is not permissible as a “fishing expedition” to determine whether a cause of action exists, unless it is shown the information sought is material and necessary. A petition that already presents the time, date, and location of the accident, including the events immediately preceding the incident, is sufficient to frame a complaint. Thanks to Gina Rodriguez for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

New York Court Permits Disclosure Of Social Media Activity In Personal Injury Lawsuit

Millions of Americans document their lives and activities on social media sites such as Facebook, Instagram and TikTok. When a person becomes injured in an accident and files a personal injury lawsuit, should defendants be permitted access to plaintiff’s social media?

In Gentile v. Ogden, the New York Appellate Division, Second Department, recently addressed this question in a case involving a car accident. Plaintiff in that case alleged that she suffered serious neck, back and shoulder injuries that prevented her from performing her daily living activities. In light of such claims, defendants moved to compel the disclosure of all relevant social media activity from all of plaintiff’s social media accounts for a period of three years before the accident. The Supreme Court granted the motion and plaintiff appealed.

The Second Department recognized that CPLR §3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof. It further observed that in order to receive such disclosure, a party need only show that the items sought are reasonably calculated to provide relevant information, not that the items actually exist. In rejecting plaintiff’s arguments and affirming the Supreme Court, the Second Department found that the defendants demonstrated that the plaintiff’s social media accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life.

The Gentile decision confirms that a personal injury plaintiff’s social media activity is fair game in discovery where his or her physical condition is at issue and the request is tailored to seek information relevant to their damages claims.

Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Insurers In SUM Arbitration Must Timely Seek Discovery Or Risk Losing The Right To Do So

In In the Matter of Arbitration Allstate Insurance Company and James M. Twomey, an insurer moved to stay arbitration of a supplementary uninsured/underinsured motorist (SUM) claim to compel discovery in aid of arbitration pursuant to CPLR 3102 (c). The Supreme Court denied the initial Petition and the insurer appealed.

The Fourth Department affirmed, finding that the Supreme Court correctly found that the insurer “had ample time . . . within which to seek discovery of the respondent insured as provided for in the insurance policy, and unjustifiably failed to utilize that opportunity” to obtain the requested discovery. The Fourth Department also found that the insurer failed to establish the “extraordinary circumstances” necessary to warrant court-ordered disclosure in aid of arbitration under CPLR 3102 (c), or that the discovery if it was allowed would be inadequate for it to establish its case.

The court also rejected the insurer’s argument that the insured respondent’s demand for arbitration was premature in that he had not complied with the terms of the SUM endorsement in the policy. The insurer failed to properly raise the issue on appeal, but the court nonetheless found that the insurer failed to show that its insured had failed to comply with the terms of the endorsement.

This decision highlights the importance of promptly seeking discovery in SUM arbitration and shows that an insurer can lose the right to do so if it does not seek discovery in a timely manner.

Please e-mail John Diffley with any questions.

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