I Index Number : 107409/2011 1 DEL GALLO, KARLA INDEX

Sequence Number : 002

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r to Show Cause -Affidavits -

JUN 2 3 2016

COUNTY CLERKS OFFICE NEW YORK

1. CHECK ONE: ..................................................................... 0 CASE DISPOSED

2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED

3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE

@ NON-FINAL DISPOSITION

0 DENIED 0 GRANTED IN PART 0 OTHER

SUBMIT ORDER

0 FIDUCIARY APPOINTMENT 0 REFERENCE

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - - PART 5

KARLA DEL GALLO, MICHAEL J. RICCIUTTI, as Administrator for the Estate of GIANNI MARIE RICCIUTTI, Deceased, and MICHAEL J. RICCIUTTI, Individually, Index No.: 107409/11

Plaintiffs,

-against- . DECISION/ORDER

CITY OF NEW YORK, CENTRAL, PARK CONSERVANCY, INC., THE WILDLIFE CONSERVATION SOCIETY and BEUCLER TREE EXPERTS, LLC,

Defendants.

FREED, KATHRYN, J.:

JUN a 82M4

RECITATION, AS REQUIRED BY CPLR2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.

PAPERS NUMBERED

NOTICE OF MOTION AND AFFIDAVITS ANNEXED ................... CENTRAL PARK’S ANSWEIUNG AFFIDAVIT ................................ OTHER ANSWERING AFFIDAVITS .................................................. REPLYING AFFIDAVITS .................................................................... EXHIBITS .............................................................................................. ....................... OTHER ................................................................................................... .......................

1 2 W . A - F ) 3,4@~s.A-L) . .5.@Xs.A-I) ....... 6,7 ......... ........ 8.9 .........

NOTICE OF CROSS-MOTION AND AFFIDAVITS ANNEXED......

UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDBR ON THE MOTION IS AS FOLLOWS:

In this action, plaintiffs sue to recover damages for the death of Gianni Marie Ricciutti,

the infant daughter of plaintiffs Karla Del Gallo and Michael Ricciutti, and for personal injuries

sustained by plaintiff Karla Del Gallo (Del Gallo or plaintiff), resulting fiom a falling tree limb in

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Central Park in June 20 10 (the accident). Plaintiffs move for a protective order with respect to

certain of defendants’ discovery demands. Defendants City of New York (City), Central Park

Conservancy (CPC), The Wildlife Conservation Society (WCS), and Beucler Tree Experts, LLC

(Beucler) oppose the motion; and WCS cross moves to compel plaintiffs to produce certain

documents and information.

DISCUSSION

As all parties in this case recognize, the scope of pre-trial discovery under CPLR 3 10 1 (a)

is broad. CPLR 3 10 1 (a) provides that “[tlhere shall be full disclosure of all evidence material

and necessary in the prosecution or defense of an action” and “embodies the policy determination

that liberal discovery encourages fair and effective resolution of disputes on the merits.”

Spectrum Sys. Intl. Corp. v Chem. Bank, 78 NY2d 371, 376 (1991). The words “material and

necessary” as used in the statute are “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 delay and prolixity. The test is one of usefulness and reason.” Allen v

Crowell-Collier Publ. Co. , 2 1 NY2d 403,406 (1 968); see Cynthia B. v New Rochelle Hosp. Med.

Ctr., 60 NY2d 452,46 1 (1 983).

Notwithstanding the policy of favoring “open and far-reaching pretrial discovery”

(DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 193 [ 19921, cert denied sub nom Poole v

Consolidated Rail Corp, , 5 10 US 8 16 [ 19931; Kavanagh v Ogden Allied Maintenance Corp. , 92

NY2d 952,954 [1998]), “[a] party is not entitled to unlimited, uncontrolled, unfettered

disclosure.” Geffner v Mercy Med Ctr., 83 AD3d 998, 998 (2d Dept 201 1) (citations omitted);

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see Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140 (2d Dept 2010); Gilman & Ciocia, Inc.

v Walsh, 45 AD3d 531 (2d Dept 2007); see also H R . Prince, Inc. v Elite Envtl. Sys., Inc., 107

AD3d 850, 850 (2d Dept 2013) (“discovery demands which are unduly burdensome, lack

specificity, or seek privileged and/or irrelevant information are improper and will be vacated”).

The trial courts have broad discretion to supervise discovery and to determine whether

information sought is material and necessary. See Martinez v Bauer, 103 AD3d 537, 537 (lst

Dept 2013); Mironer v City oflvew York, 79 AD3d 1106, 1108 (2d Dept 2010); Auerbach v

Klein, 30 AD3d 451,452 (2d Dept 2006). Litigants “are not without protection against

unnecessarily onerous application of the discovery statutes. Under our discovery statutes and

case law, competing interests must always be balanced; the need for discovery must be weighed

against any special burden to be borne by the opposing party.” Kavanagh, 92 NY2d at 954

(internal quotation marks and citations omitted); see Andon v 302-304 Mott St. Assocs., 94 NY2d

740, 747 (2000); Cynthia B. , 60 NY2d at 46 1.

CPLR 3 103 (a) authorizes a court, “at any time on its own initiative or on motion of any

party,” to issue a “protective order denying, limiting, conditioning or regulating the use of any

disclosure device . . . . to prevent unreasonable annoyance, expense, embarrassment,

disadvantage, or other prejudice to any person or the courts.” See Vaccaro v Weinstein, 20 14 WL

2198797, *1,2014 NY App Div LEXIS 3766, “3,2014 NY Slip Op 3825 (2d Dept May 28,

2014). “The burden of showing that discovery is improper is on the party seeking a protective

order.” Sage Realty Corp. v Proskauer Rose L.L.P., 251 AD2d 35,40 (lst Dept 1998).

Plaintiffs move for a protective order with respect to the following discovery demands:

ultrasound fertility records, enrollment and exercise records from a cognitive therapy website,

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“LinkedIn” records, driving records, ob/gyn records, website or social media records, and

insurance records from Liberty Mutual; driving records and insurance records of Michael

Ricciutti; a list of pre-natal vitamins and dosages being taken by plaintiff; information about

Jesse Benitez and Deanna Benitez; pictures taken at a sister-in-law’s pool; bank records

regarding payouts; printouts of emails from Del Gallo from 2002 to date; credit card payments; a

camera used by Ricciutti on the date of the accident; and the address of plaintiff’s brother. See

Isaac Affirmation in Support of Plaintiffs’ Motion (Isaac Aff.), at 2.

In its cross motion, WCS seeks an order compelling plaintiffs to produce the following

items: authorizations for the “current records” of John Sherman, M.D., Scott Wolfe, M.D., and

Dr. Llinas; the current address of Jesse Benitez and Deanna Benitez; site information and

passwords necessary to review Del Gallo’s records pertaining to her LinkedIn account; and

authorizations for all obstetrical and gynecological records pertaining to plaintiff of Dr. Hoffman

and Shady Grove Fertility. See Connors Affirmation in Opposition to Plaintiffs’ Motion and in

Support of WCS’s Cross Motion (Connors Aff.), 7 2.

Obstetrical and Gynecological Records

When a party’s physical or mental condition “is in controversy” (CPLR 3 121 [a]), a party

generally is required to make available relevant medical records. See Dillenbeck v Hess, 73

NY2d 278,286-287 (1 989); Cynthia B., 60 NY2d at 461. The physician-patient privilege, which

may otherwise prohibit disclosure of information obtained by a physician treating a patient, is

deemed waived by a litigant “when, by bringing or defending a personal injury action, that person

has affirmatively placed his or her mental or physical condition in issue.” Dillenbeck, 73 NY2d

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at 287; see Arons v Jutkowitz, 9 NY3d 393,409 (2007); Hoenig v Westphal, 52 NY2d 605,608-

609 (1 98 1); Koump v Smith, 25 NY2d 287,294 (1 969). “In order to effect a waiver, a party must

affirmatively assert the condition and place that condition in issue.” Fox v Marshall, 91 AD3d

710,711-712 (2d Dept 2012), citing Dillenbeck, 73 NY2d at 288; see Koump, 25 NY2d at 294.

The “waiver, however, ‘does not permit wholesale discovery of information regarding the

protected party’s physical and mental condition.’” Carter v Fantauzzo, 256 AD2d 11 89, 1190

(4th Dept 1998) (citation omitted); see Iseman v Delmar Medical-Dental Bldg., 1 13 AD2d 276,

279 (3d Dept 1985). “[A] party does not waive the privilege with respect to unrelated illnesses

or treatments.” McLane v Damiano, 307 AD2d 338,338 (2d Dept 2003); see Felix v Lawrence

Hosp. Ctr., 100 AD3d 470,471 (lst Dept 2012); Bozekv Derkatz, 55 AD3d 131 1, 1312 (4*h Dept

2008). “The burden of proving that a party’s mental or physical condition is in controversy, for

purposes of obtaining relevant . . . records, is on the party seeking the records.” Budano v

Gurdon, 97 AD3d 497,498 (1” Dept 2013), citing Koump, 25 NY2d at 300.

Plaintiffs object to production of the obstetrical and gynecological records of Drs.

Hoffman and McClamrock pertaining to plaintiff, and fertility records of Shady Grove Fertility

and Radiology-Ultrasound, as privileged and unrelated to any of Del Gallo’s claimed injuries.

Defendants contend that they are entitled to such records because plaintiffs broad allegations of

injuries, and claim for loss of enjoyment of life, place her entire physical condition in

controversy. See Connors Aff., T[f[ 41-42; Gross Affirmation in Opposition (of CPC) to

Plaintiffs’ Motion (Gross Aff.), 7 12.

Contrary to defendants’ contentions, plaintiff Del Gallo has not affirmatively placed her

gynecological condition in issue so as to warrant discovery of the requested medical records.

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Plaintiff has alleged extensive and severe injuries as a result of being hit by a large tree limb, and

those injuries, as identified in her Bill of Particulars, include numerous head and brain injuries,

such as multiple skull and facial fractures, intra-cranial hemorrhage, damage to optic nerves,

brain swelling and traumatic brain injury; as well as orthopedic injuries to her right and left arm,

left shoulder, left leg, and lung contusions, respiratory failure, fractured teeth, hearing loss,

dizziness, neuropathy, scarring, and more. See Verified Bill of Particulars, Ex. C to Isaac Aff.

Plaintiffs claimed injuries also include anxiety, memory deficits, depression, conhsion, and

survivor’s guilt, all of which are claimed to have contributed to a lesser quality of life and a loss

of enjoyment of life. Id.

Plaintiffs claimed injuries do not encompass any gynecological conditions or sequelae,

and defendants produce no testimony or other evidence connecting plaintiffs gynecological

treatment to the accident or to the injuries sustained in the accident. See Guzman v Metropolitan

Tramp., 2012 WL 5287618,2012 NY Misc LEXIS 501 1,2012 NY Slip Op 32657(U) (Sup Ct,

NY County 20 12) (where plaintiff claimed neck and elbow fractures, prior head injury not put in

issue although defendants claimed it might have caused fall); Sgambellone v Wheatley, 165 Misc

2d 954,958 (Sup Ct, Schenectady County 1995) (plaintiff did not waive privileged status of

medical records containing her gynecological and reproductive history by instituting lawsuit

seeking recovery for back, leg, arm and hand injuries sustained in accident); cf Lopez v Kelly St.

Realty, Inc., 106 AD3d 534 (lst Dept 2013) (“potential connection” between left leg injury

sustained in accident and subsequent left ankle fracture permitted disclosure pertaining to latter

injury); Romance v Zavala, 98 AD3d 726 (2d Dept 2012) (defendants entitled to records of

treatment for kidney disease related to claim of back injuries and problems urinating but not to

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records of unrelated conditions). There also is no evidence to support the City’s assertion that

“[tlhese treatment records may indeed be contrary to plaintiffs other treating record.” Page

Affirmation in Opposition (of City) to Plaintiffs’ Motion (Page Aff.), ‘T[ 20. See Crazytown

Furniture v Brooklyn Union Gas Co. , 150 AD2d 420,42 1 (2d Dept 1989) (“unsubstantiated bare

allegations of relevancy are insufficient to establish the factual predicate regarding relevancy”).

Further, the cases on which defendants rely, holding broadly that a plaintiff places her

entire medical condition in controversy when there are “broad allegations of physical injury and

mental anguish” (Farrell v E. W. Howell Co., LLC, 103 AD3d 772,773 [2d Dept 2013]), or

claims for loss of enjoyment of life, are neither determinative nor particularly instructive here.

See e.g. O’Rourke v Chew, 84 AD3d 11 93 (2d Dept 201 1) (records of psychological disorder

discoverable where mental anguish alleged); Amoroso v City oflvew York, 66 AD3d 618 (2d

Dept 2009)(records regarding preexisting conditions material and necessary to defense where

prior medical conditions had potential impact upon claim for loss of enjoyment of life); Vanalst v

City oflvew York, 276 AD2d 789 (2d Dept 2000) (where plaintiff claimed left knee injury from

trip and fall, records of history of lower back pain resulting from prior accidents relevant to loss

of enjoyment of life); see also Farrell, 103 AD3d at 773 (where plaintiff had two work-related

injuries within three years prior to subject accident, and an automobile accident after the subject

accident, court ordered plaintiff to provide authorizations for medical treatment commencing

three years prior to subject accident). The decisions shed little light on the nature and extent of

the alleged injuries at issue in those cases, and do not demonstrate that, in this case, plaintiff has

placed her entire medical condition in issue. See Gumbs v Flushing Town Ctr. III, L. P. , 1 14

AD3d 573,574 ( I s t Dept 2014) (plaintiff did not place his entire medical condition in

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controversy, even where claimed loss of enjoyment of life, by seeking damages for orthopedic

injuries); Gurriz v City ofNew York, 2012 WL 2396518,2012 NY Misc LEXIS 2929, “56,2012

NY Slip Op 3 1623(U) (Sup Ct, NY County 2012) (disagreeing with Second Department cases

that broad allegations of injuries put entire medical condition in issue).

Defendants’ argument that plaintiffs obstetrical and gynecological records must be

produced because they are material and relevant to plaintiffs claim that she experienced

depression and emotional distress as a result of the June 2010 accident, also is unavailing. WCS,

in particular, contends, based on records received fiom plaintiffs psychotherapist, that plaintiffs

gynecological records are needed to know “‘to what degree plaintiffs psychological injuries are

associated [with the alleged tort] and to what extent they are explained by other causes.”’

Connors Aff., 7 42, quoting Velez v Daar, 41 AD3d 164, 165-166 (1” Dept 2007). WCS also

argues that defendants are entitled to examine those records “‘to determine whether [plaintiff’s]

disability is related to the accident or to her gynecological problems.”’ Connors Aff., 7 42,

quoting Wachtman v Trocuire Coll., 143 AD2d 527, 528 (4th Dept 1988) (court directed

production of gynecological records where plaintiff testified that she was disabled due to

gynecological problems after accident).

Velez and Wachtman, however, are inapposite. In Velez, a medical malpractice case

based on an alleged failure to diagnose cancer, plaintiffs psychotherapist’s records were

discoverable where plaintiff acknowledged at his deposition that he told his therapist that factors

other than cancer also were causes of his depression and anxiety. 41 AD3d at 165. The Court

found that, by putting his psychological condition at issue, plaintiff waived the psychotherapist-

patient privilege, and the therapist’s records were material and necessary to knowing to what

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degree plaintiffs psychological injuries could be attributed to the alleged malpractice and to

other causes. Id at 166.

Here, as WCS itself demonstrates, defendants have already obtained relevant

psychological treatment records, which indicate that, fiom May 20 1 1 to January 20 12, plaintiff

experienced grief and emotional distress from the death of her daughter as well as from a June

201 1 miscarriage and associated problems. See Progress Notes of Jo Ellyn Pederson, Ph.D., Exs.

J, K, L to Connors Aff. Plaintiffs have not objected to producing those records, and apparently

do not object to the discovery of other psychiatric records related to plaintiffs psychological and

emotional distress damages resulting from the accident. See Isaac Reply Aff., at 10. Thus, to the

extent that defendants argue that the obstetrical and gynecological records are needed to, in

essence, further parse out the cause of plaintiffs depression and emotional distress as between

her gynecological problems and the loss of her daughter and injuries sustained in the accident,

that argument is insufficient to warrant discovery of the obstetrical and gynecological records

sought. See Napoli v Crovello, 49 AD3d 699,699 (2d Dept 2008); Chervin v Macura, 28 AD3d

600,601 (2d Dept 2006); see also Alford v City of New York, __ AD3d -, 983 NYS2d 522

(1 St Dept 20 14) (no discovery of mental health records allowed where no showing of

“particularized need” for confidential records of matters not directly at issue); Elmore v 2720

Concourse Assoc., L.P., 50 AD3d 493 (1” Dept 2008) (same).

As the Court of Appeals has emphasized, “discovery determinations are discretionary;

[and] each request must be evaluated on a case-by-case basis.” Andon, 94 NY2d at 747.

Although the court remains cognizant of “the strong policy supporting open disclosure” (id.), a

balance of the “competing interests” here leads to the conclusion that defendants’ purported need

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for plaintiffs obstetrical and gynecological records to prepare their defense does not outweigh

the burden of subjecting plaintiff to the disclosure.

Social Media Records

While courts continue to grapple with, and formulate guidelines for, discovery of

electronically stored information, including social media records, courts recognize that,

generally, ‘“ [dliscovery of [social networking postings] requires the application of basic

discovery principles in a novel context.”’ Giacchetto v Patchogue-Medford Union Free Sch.

Dist., 293 FRD 112, 114 (ED NY 2013) (citation omitted); see Winchell v Lopiccolo, 38 Misc 3d

458,461 (Sup Ct, Orange County 2012). As in other contexts, a “party demanding access to

social networking accounts must show that the method of discovery will lead to ‘the disclosure of

relevant evidence or is reasonably calculated to lead to the discovery of information that bears on

the claims.”’ Id., quoting Abrams v Pecile, 83 AD3d 527,528 (lst Dept 201 1); see Patterson v

Turner Constr. Co., 88 AD3d 617, 618 (1” Dept 2011); Vyas v Campbell, 4 AD3d 417,418 (2d

Dept 2004). As previously stated, the scope of discovery, while broad, does not give a party “the

right to ‘uncontrolled and unfettered disclosure”’ (Gomez v State ofNew York, 106 AD3d 870,

872 (2d Dept 201 3 [citation omitted]), and “the ‘fact that the information [Defendant] seeks is in

an electronic file as opposed to a file cabinet does not give [it] the right to rummage through the

entire file.”’ Giacchetto, 293 FRD at 1 14 (citation omitted). “[Dligital ‘fishing expeditions’ are

no less objectionable than their analog antecedents.” Caraballo v City of New York, 201 1 WL

972547,201 1 NY Misc LEXIS 1038, *6, 201 1 NY Slip Op 30605(U) (Sup Ct, Richmond

County 201 l), citing McCann v Harleysville Ins. Co, of N Y. , 78 AD3d 1524, 1525 (4th Dept

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20 10); see Tapp v New York State Urban Dev. Corp. , 102 AD3d 620,62 1 ( lSt Dept 20 13);

Auerbach, 30 AD3d at 452; Winchell, 38 Misc 3d at 461.

Courts have used “a two-prong analysis for determining whether social media accounts

are discoverable. First, the court determines whether the content in the accounts is material and

necessary, and then it balances whether the production of this content would result in a violation

of the account holder’s privacy rights.” Jennings v TD Bank, 2013 WL 5957882, 2013 NY Misc

LEXIS 32783(U), *3 (Sup Ct, Nassau County 2013), citing Fawcett v Altieri, 38 Misc 3d 1022

(Sup Ct, Richmond County 2013). To warrant such discovery, “defendants must establish a

factual predicate for their request by identifying relevant information in plaintiffs [social media]

account - that is, information that ‘contradicts or conflicts with plaintiffs alleged restrictions,

disabilities, and losses, and other claims.”’ Tapp, 102 AD3d at 620-621, quoting Patterson, 88

AD3d at 618; see Kregg v Maldonado, 98 AD3d 1289, 1290 (4th Dept 2012). “Absent some

facts that the person disclosed some information about the subject matter of the pending law suit,

granting carte blanche discovery of every litigant’s social media records is tantamount to a costly,

time consuming ‘fishing expedition.’” Fawcett, 38 Misc 3d at 1028; see Pecile v Titan Cap.

Group, LLC, 1 13 AD3d 526, 527 (1 st Dept 20 14) (vague and generalized assertions that

information might contradict plaintiffs claims provides no basis for discovery of social media

accounts); Tapp, 102 AD3d at 62 1 (argument that Facebook postings may reveal information

contradicting plaintiffs disability amounts to request for fishing expedition); cf Richards v Hertz

Corp., 100 AD3d 728 (2d Dept 2012) (discovery of private Facebook postings allowed where

material posted on public page contradicted deposition testimony); Romano v Steelcase Inc., 3 0

Misc 3d 426,43 1 (Sup Ct, Suffolk County 2010) (same).

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Defendants have demanded authorizations from Del Gallo for “the content of her entire

LinkedIn account.” Connors Aff., 7 19; see WCS’s Notice to Produce, dated August 30,2012,

Ex. F to Connors Aff., 7 1; CPC’s Combined Demand, dated August 27,2012, Ex. H to Gross

Aff., 7 1 1. WCS contends that plaintiffs deposition testimony provides the necessary factual

predicate for discovery of her LinkedIn account and her “responses to former colleagues’

inquiries regarding her post-accident condition and communications between Karla Del Gallo

and employment recruiters are material to her damages claims.” Connors Aff., 7 18. CPC argues

that, because plaintiff claims that she has been “totally disabled” and “partially disabled” from

working since the accident, it is entitled to discovery of plaintiffs LinkedIn account “to learn

about plaintiffs on-line description of her employment abilities, any employment offers she may

have received, her acceptance of any offers, and so forth . . . [which] may help determine the

amount of damages.” Gross Aff., 7 15.

At her deposition, Del Gallo testified that she had a LinkedIn account prior to the June

20 10 accident, and she left it up after the accident to keep in touch with former colleagues. Del

Gallo Dep., August 14, 2012, Ex. A to Connors Aff., at 364-365. She stated that she has

responded to former colleagues “who are asking how I’m doing. Not about work-related stuff.”

Id. at 365. She also stated that recruiters have contacted her about positions and she has

responded that she is “not looking for employment at this time.” Id.

Defendants do not argue that the content of plaintiffs LinkedIn account will contradict

her testimony that she told recruiters that she was not seeking employment, and, given her

acknowledgment that she did not look for work, the requested information likely may be

cumulative and unnecessary. See Winchell, 3 8 Misc 3d at 46 1. Nevertheless, plaintiff does not

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dispute that information related to her communications with recruiters may be relevant to her lost

earnings claim, and previously, in response to defendants’ demands for a list of all recruiters who

have contacted her fi-om LinkedIn, she stated that she would provide such records should they

become available. See Omnibus Response to Defendants’ Discovery Demands, Ex. A to Isaac

Aff., T[ 17. Defendants, therefore, may obtain information pertaining to plaintiffs

communications with recruiters and others, related to job offers and inquiries, searches, and

responses, if any, available on her LinkedIn account.

Defendants have not shown, however, that they are entitled to discovery of plaintiffs

communications with former colleagues inquiring about her condition, or to all other material on

plaintiffs LinkedIn account. WCS, in arguing that plaintiffs “self assessments” in response to

inquiries from former co-workers are relevant to her damages claim (Connors Reply Aff., 7 1 l),

neither asserts that the disclosure might contradict or conflict with her claims nor otherwise

provides a “proper basis for the disclosure.” Pecile, 113 AD3d at 527; see Tapp, 102 AD3d at

620-621. WCS’s further argument, that plaintiffs LinkedIn communications are relevant to her

claims that her injuries have prevented her from “enjoying the normal fruits of society” and have

contributed to “loss of enjoyment of life” (Connors Reply Aff., 7 8), is improperly raised for the

first time in reply. See Gumbs, 1 14 AD3d at 574; Keneally v 400 Fifth Realty LLC, 100 AD3d

624,624 (1 St Dept 201 3); Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 (1 St Dept 1992). Even

considering the argument, however, defendants offer no more than “the mere hope of finding

relevant evidence,” which is insufficient to warrant such disclosure. McCann, 78 AD3d at 1525.

“To be sure, anything that a person says or does might in some theoretical sense be reflective of

her emotional state. But that is hardly justification for requiring the production of every thought

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she may have reduced to writing.” Rozell v Ross-Holst, 2006 WL 163 142, *3,2006 US Dist

LEXIS 2277, “10-1 1 (SD NY 2006).

While defendants have also demanded access to “all social media sites” used by Del

Gallo (see WCS’s Notice to Produce, dated April 2,2013, Ex. H to Connors Aff., 7 2), it appears

that defendants are not pursuing such demand. In any event, such demand should be denied as a

request for an improper fishing expedition. See Auerbach, 30 AD3d at 452. The City, claiming

that it is entitled to access plaintiffs “Luminosity” account, also offers nothing to support its

entitlement to access what is essentially an online brain game site.

Driving Records

Defendants have demanded authorizations for Del Gallo’s and her husband’s driving

records, including copies of driver’s licenses, driver’s license applications and license renewal

applications, from both the New Jersey Department of Motor Vehicles and the Maryland Motor

Vehicle Administration. Del Gallo testified at her deposition that she has had a driver’s license

since she was 16, currently holds a valid license, and, after she moved from New Jersey to

Maryland in December 201 0, she transferred her New Jersey license to a Maryland license. Del

Gallo Dep., Ex. I to Connors Aff. in Opp., at 25-26,26-27. She testified that when she

transferred her license, she did not remember whether she took a vision test, she did not have to

provide any vision records, and that “you just give them your New Jersey valid license and you

get a Maryland one.” Id. at 166-167. At her deposition held in August 2012, plaintiff testified

that she did not drive at that time, that one of her doctors, Dr. Llinas, told her not to drive, and

that she was “very anxious” to drive and hoped to get permission to “at least do some limited

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driving.” Id. at 178-179. Plaintiff further testified that another of her doctors, Dr. Goldstein,

deferred to Dr. Llinas on her neurological issues, but, with respect to her vision issues, would

allow her to do some limited driving, on local roads, during the day. Id. at 179- 180.

Based on this testimony, defendants contend that the demanded documents, and any

information about restrictions on Del Gallo’s Maryland and New Jersey licenses, are relevant to

her current physical and mental limitations, her loss of enjoyment of life, and the extent of her

ability to be self-sufficient. See Gross Aff., ‘I[ 14; Connors Aff., 7 26. WCS contends that,

because plaintiff testified that she does not remember whether she took a vision test when she

exchanged her New Jersey license for a Maryland license, and Maryland requires a vision test or

proof of adequate vision when exchanging a license, “any documentation” submitted by Del

Gallo to the Maryland Motor Vehicle Administration to show that she is physically and mentally

qualified to drive a car is relevant to her damages claims. Id., 77 23-25. The City also argues,

without citing to any legal authority, that all applicants “are required by law to list any

impairments as to their physical ability to drive” (Page Aff., 7 28), and if plaintiffs “application

reflects that she did not list any limitations, then such will go towards her credibility at the time

of trial, and will clearly assist with the defendant’s case.” Id.

Defendants, however, offer no evidence that any of the demanded documents exist, other

than plaintiffs driver’s license, and “[tlhis attempt to use document discovery as a means to test

whether or not certain unknown documents exist is an impermissible fishing expedition.” Penn

Place Operating, Inc. v Two Penn Plaza Assocs., 2 15 AD2d 23 1,23 1 (1 St Dept 1995); see

Argumedo v 303 Tenants Corp., 246 AD2d 6 16 (2d Dept 1998). Nor do defendants show that

they made any “attempt to probe this issue” at plaintiffs deposition. Penn Place Operating, Inc.,

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215 AD2d at 23 1; see Fascaldi v Fascaldi, 209 AD2d 578 (2d Dept 1994) (depositions should be

used to ascertain existence of documents before documents demanded).

Contrary to defendants’ contentions, there is no testimony or other evidence that an

application was required to exchange an out-of-state license for a Maryland license, or that

disclosure of any disability was required.’ Even assuming a vision test was required (see

Connors Aff., 7 24 n 4), information regarding plaintiffs vision is available, and more

appropriately sought, from other sources, including opthamology records already requested. See

WCS’s Demand for Authorizations, Ex. B to Connors Aff. Defendants thus do not show that the

information sought from driving records is likely to lead to relevant evidence or could not be

obtained by other means. See Sexter v Kimmelman, 277 AD2d 186, 187 (1” Dept 2000);

Crazytown Furniture, 150 AD2d at 42 1, With respect to driving records of plaintiffs husband,

Michael Ricciutti, and automobile insurance records from Liberty Mutual, defendants make no

argument that those records are material and necessary. Plaintiffs accordingly are not required to

produce the requested driving and automobile insurance records.

Additional Issues

Plaintiffs’ motion for a protective order with respect to the remaining discovery issues

identified in the motion, including “pictures taken at a sister-in-law’s pool, bank records

regarding payouts, printouts of e-mails from Del Gallo from 2002 to date, credit card payments, a

camera used by Mr. Ricciutti on the date of the accident, and the address of plaintiffs brother”

‘To the contrary, a review of the Maryland Motor Vehicle Administration website indicates that no application is required to transfer a license. See www.mva.maryland,gov/drivers/apply/new-to- maryland.htm.

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(Isaac Aff,, at 2), is denied without prejudice to raising those issues at a conference before the

special referee assigned to this case. Neither plaintiffs nor defendants have adequately addressed

those issues for the court to make a determination. Similarly, to the extent that defendants raise

other outstanding discovery issues in their opposition papers, defendants, other than WCS , have

not moved for any relief, and the discovery issues raised in their opposition papers also should be

brought before the special referee, after good faith efforts to resolve them have been made.2

Turning to WCS’s cross motion to compel plaintiff to provide discovery, WCS correctly

notes that plaintiff has offered no opposition to its demand for authorizations for the current

records of John Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; and the current address of

Jesse Benitez and Deanna Benitez; and the portion of the motion seeking those items will be

granted. The branch of the cross motion seeking authorizations for all obstetrical and

gynecological records of Dr. Hoffman and Shady Grove Fertility concerning plaintiff is denied

for the reasons discussed above; and the branch of the cross motion seeking plaintiffs LinkedIn

records is denied except to the limited extent described above.

For all the above stated reasons, plaintiffs motion is granted in part and denied in part,

and WCS’s cross motion is granted in part and denied in part, and it is accordingly:

ORDERED that plaintiffs motion for a protective order is granted to the extent that

defendants’ demands for obstetrical and gynecological records pertaining to plaintiff of Dr.

Hoffman and Dr. McClamrock, and of Shady Grove Fertility and Radiology-Ultrasound, are

’The court has considered defendants’ other arguments in opposition to plaintiffs motion, including the City’s arguments that the motion should be denied based on procedural defects, and finds them unavailing.

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vacated; and defendants demands for driving records of plaintiff and of Michael Ricciutti, and for

insurance records from Liberty Mutual, are vacated; and it further,

ORDERED that WCS's cross motion is granted, without opposition, to the extent that

plaintiffs are directed to provide, within twenty (20) days of service of a copy of this order with

notice of entry, 1) recent HIPPA compliant authorizations for plaintiffs records from John

Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; and 2) the last known address(es) of Deanna

Benitez and Jesse Benitez; and it is further,

ORDERED that, within twenty (20) days of service of a copy of this order with notice of

entry, plaintiff shall produce all postings or other records from her LinkedIn account, reflecting,

relating to, referring to, or otherwise concerning any communications with recruiters and any

other communications pertaining to employment offers, employment inquiries, and employment

searches, and any responses to such offers, inquiries, and searches, since the date of the accident,

including any records previously deleted or archived; and it is further,

ORDERED that any remaining discovery issues not addressed in this order are referred to

the special referee.

Dated: June 17,2014

ENTER: ,/,?

HON. KATHRYN FREED, J.S.C. EtoN.KATHRYN-

JUSTfcE OF S m corn -18-