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Executive Committee
Lester Schwab Katz & Dwyer LLP



Congratulations to David Motola, Paul Tarr and C. Briggs Johnson: Appellate Division reverses denial of motion to compel discovery based on recent Court of Appeals' decision

7/1/2019

On May 21, 2019, the Motola Unit and the Appellate Practice Group won a reversal of the Bronx County Supreme Court’s denial of defendants' motions to compel discovery and to renew based on a newly-rendered Court of Appeals decision.  In Doyle v. Temco, 2019 N.Y. App. Div. LEXIS 3903 (1st Dep’t May 21, 2019), a personal injury plaintiff had withheld production of her passports and information regarding social media accounts that she maintained after her accident.  Defendants argued that under Forman v. Henkin, 30 N.Y.3d 656 (2018), rev’g, 134 A.D.3d 529 (1st Dep’t 2015), plaintiff could not properly withhold such discovery in view of her claim of impaired quality of life. 

In Forman, the Court of Appeals held that although “some materials on a Facebook account may fairly be characterized as private,” “even private materials may be subject to discovery if they are  relevant.”  30 N.Y.3d at 666.  “For purposes of disclosure,” the Court continued, “the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”  Id.

The Appellate Division agreed with defendants’ argument that this standard compelled production  of plaintiff’s passports, as well as her “post-accident social-media records regarding social and recreational activities that she claims have been limited by her accident.”  Doyle, 2019 N.Y. App. Div. LEXIS 3903, *2.  

This is the first Appellate Division decision to address this aspect of Forman.  

The case is being litigated by David Motola.  Paul Tarr and C. Briggs Johnson drafted the appellate brief.

Attorneys

C. Briggs Johnson
Paul M. Tarr
David H. Motola

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