New York Supreme Court Provides Detailed Discovery Protocol

New York Supreme Court Provides Detailed Discovery Protocol

The New York Supreme Court considered aspects of discovery of a hard drive for a recent marital dispute. In this opinion, the Court surpassed mere decision and instead, also outlined strict guidelines to be followed in connection to discovery of the hard drive.

On February 4, 2010, plaintiff Sarah Schreiber requested that a hard drive of defendant Marc Schreiber be given to the court for forensic examination. Schreiber claimed that the defendant “concealed his income and assets in an attempt to avoid paying her a fair share of marital income and assets earned or acquired during [their] thirty-year marriage.” Investigation of the hard drive would allow the plaintiff to discover information relating to the defendant’s “’bizarre’ financial activities” which, she claimed, were not procured during discovery. As an alternative to the defendant producing the hard drive to the court, the plaintiff offered that her expert be allowed permission to copy the hard drive at the office, and provide the copy to the court.

The defendant opposed the motion on the grounds that the plaintiff’s “request [was] unnecessary and burdensome,” as he had already produced the entirety of documents to her. The court considered CPLR 3101(a), which states that if information is ‘material and relevant,’ it can be compelled through motions. However, the court must ‘oversee the discovery process…to insure that undue prejudice and delay do not occur as the results of additional and/or potentially open-ended discovery, including unwarranted fishing expeditions.’ The court also had to consider that hard drives “are qualitatively different from other objects because of the difficulty in apprehending all that they contain.” To determine a ruling, the court looked to previous matrimonial cases where electronic information was involved.

In Etzion v. Etzion, the plaintiff-wife sought production of her husband’s computers and other digital information. The court decided that the plaintiff’s “allegation of defendant’s past fraudulent conduct did not justify plaintiff’s ‘all-encompassing’ demand for full system access.” In R.C. v. B.W., the plaintiff-husband sought the investigation of his wife’s computer. Justice Adams denied the plaintiff’s request, calling the discovery ‘a fishing expedition.’

Thus, in Schreiber v. Schreiber, the court denied plaintiff access to the hard drive, calling her request “overboard” and citing the “general” and “unlimited” nature of the discovery request. The court allowed “leave to renew by notice of motion within forty-five days after the date of service of the instant decision and order with notice of entry.” Upon renewal, the plaintiff is only allowed a clone of the hard drive. The court also outlined strict guidelines for renewal, as follows:

a)      Discovery Referee: The parties will have until the renewal deadline to agree   on an attorney referee…to supervise discovery…

b)      Forensic Computer Expert: The parties will have until the renewal deadline to agree on a forensic computer expert who will inspect and analyze the clone….

c)       File Analysis: The expert will analyze the clone for evidence of any download, installation, and/or utilization of any software program, application, or utility which has the capability of deleting or altering files so that they are not recoverable…

d)      Scope of Discovery: Plaintiff will list the key-word and other searches she proposes to have the expert run…Plaintiff is cautioned that she should narrowly tailor her search queries so as to expedite discovery and reduce the costs of litigation to the parties….

e)      First-Level Review: …After performing searches, the expert will export to CDs or DVDs a copy of the native files and file fragments which were hit by such searches, and will deliver such media to defendant’s counsel to conduct a privilege review….

f)       Second-Level Review: Within twenty days after delivery of the media containing the extracted files and file fragments, defendant’s counsel will deliver to plaintiff’s counsel in electronic format…all non privileged documents and information included in the extracted files…

g)      Discovery Disputes: The referee will resolve any disputes concerning relevancy and privilege….

h)      Cost Sharing: All costs for the expert will be borne by plaintiff…

i)        Discovery Deadline: The parties should agree to a fast-track discovery schedule, subject to an outside ninety-day deadline within which discovery should be completed.

j)        Retention of Clone: The discovery referee will keep the clone until the action is concluded, at which time the clone will be returned to defendant’s counsel for disposal.

For more information about this case, refer to the case site Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010).

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