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A New York state appeals panel has ordered a lower court judge to look more carefully into whether New York University was able to comply with a subpoena seeking electronic data that a university-affiliated hospital says it deleted in the ordinary course of business, reversing an order by the lower court letting NYU off the hook.
The unanimous opinion Thursday in Tener v. Cremer, 104583/10 by the Appellate Division, 1st Department, found that Manhattan Supreme Court Justice Doris Ling-Cohan should not have denied a motion seeking to compel NYU, which is not a party to the underlying lawsuit, to produce the data without holding a hearing on whether the data could be recovered. Justice Karla Moskowitz wrote the panel's opinion, joined by Justices Luis A. Gonzalez, Peter Tom, Richard T. Andrias, and Helen E. Freedman.
The case, according to the opinion, provided the appellate court with "the first opportunity to address the obligation of a nonparty to produce electronically stored information deleted through normal business operations."
The underlying lawsuit, filed by medical doctor Trilby J. Tener, concerns an allegedly defamatory statement made anonymously on Vitals.com, a website on which patients review doctors. The suit accuses Miriam L. Cremer, a doctor at NYU Langone Medical Center, of posting the statement.
During discovery, Tener traced the IP address from which the statement was posted to an internet portal at Bellevue Medical Center, an East Side Manhattan hospital. The portal was registered to the Langone Medical Center, which installed it at Bellevue for the benefit of its residents who train there, according to Tener.
In April 2010, soon after the case was filed, Tener served a subpoena on NYU seeking the identity of everyone who accessed the internet through the portal on April 12, 2009, the day the allegedly defamatory statement was posted. She also served a preservation letter advising NYU to halt any ordinary business practices that would destroy that information.
NYU's chief information officer said the university could not comply with the subpoena because the identities of people who accessed the internet through a particular portal were stored in a text file that was automatically overwritten every 30 days. The university, he said, did not "possess the technological capability or software, if such exists, to retrieve a text file created more than a year ago and 'written over' at least 12 times."
Tener moved for civil contempt against the university in September 2010. She submitted an affidavit from a forensic computer expert saying that it might be possible for NYU to comply with the subpoena by using software designed to retrieve deleted information.
Ling-Cohan denied the contempt motion, finding that the plaintiff had not refuted NYU's claim that it could not comply with the subpoena.
"Supreme Court was incorrect," Moskowitz wrote. "Plaintiff had interposed an affidavit in reply from an expert detailing the steps NYU could take to obtain the data, including the utilization of forensic software."
"In its papers in opposition to the motion, NYU offered no evidence that it made any effort at all to access the data, apparently because it believed it could not, as a nonparty, be required to install forensic software on its system," Moskowitz wrote. "However, the cases that NYU cites to support its assertion that it need not install forensic software are outdated."
The most recent case cited by NYU, Carrick Realty Corp. v. Flores, 157 Misc. 2d 868 (Civ. Ct., New York County), was from 1993. Since then, the judge said, discovery of electronically stored information had become "commonplace."
Such information "is difficult to destroy permanently," the judge said. "Deletion usually only makes the data more difficult to access. Accordingly, discovery rules contemplate data recovery."
She noted that Nassau County, N.Y.'s Commercial Division has developed sophisticated guidelines for recovering deleted information, which call for a cost-benefit analysis in considering whether to compel a party to try to recover deleted information. The same guidelines can apply to non-parties like NYU, the judge said.
"Based on the specific facts of this case, we find that the Nassau Guidelines provide a practical approach," Moskowitz wrote. "To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the horizon and the duty to preserve it attaches."
The panel ordered the Supreme Court to hold a hearing on whether it was possible for NYU to comply with the subpoena, and, if so, to perform the cost-benefit analysis necessary to decide whether it should be required to look for the deleted data.
"We're very pleased by the decision," said Steven R. Wagner of Wagner Davis, counsel to Tener. "We think it was well reasoned and fair."
Tener was also represented by Bonnie Reid Berkow of Wagner Davis.
NYU was represented by William F. Cusack and Ricki E. Roer of Wilson, Elser, Moskowitz, Edelman & Dicker, who could not be reached for comment.
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