| Detraglia v Grant |
| 2009 NY Slip Op 09120 [68 AD3d 1307] |
| December 10, 2009 |
| Appellate Division, Third Department |
| Fay Detraglia, Individually and as Parent and Guardian ofStephanie Detraglia, an Infant, Respondent, v Robert D. Grant, Jr., et al., Appellants, et al.,Defendants. (And Another Related Action.) |
—[*1] Conway & Kirby, L.L.P., Latham (Elizabeth A. Graziane of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Williams, J.), entered March 31, 2009in Saratoga County, which partially granted plaintiff's motion to compel discovery.
Defendant Robert D. Grant Jr. was driving a vehicle owned by his employer, defendantHawkeye, LLC, when he collided with a vehicle driven by defendant Krystina Detraglia.According to the accident report, the accident occurred at 2:57 p.m. on March 13, 2006. Plaintiff,the parent of one of the two injured passengers in Detraglia's vehicle, commenced this action inMay 2007 against, among others, Grant and Hawkeye (hereinafter collectively referred to asdefendants).[FN1]During discovery, plaintiff demanded that defendants produce billing records [*2]for all three of Grant's cellular telephones and the Verizon wirelessair card[FN2]for his company-issued laptop computer for the date of the accident between 12:00 p.m. and 4:00p.m. These technological devices were all in his vehicle at the time of the accident, althoughGrant testified at his deposition that he was not using any of them when the accident occurred.Plaintiff also sought to depose Vincent Franzone, Hawkeye's information technology employee,concerning the whereabouts of these devices and Hawkeye's policies relating to storage andretention of technology records and equipment. Upon defendants' refusal to comply with thesedemands, plaintiff moved to compel disclosure. Supreme Court partially granted the motion byrequiring defendants to produce the records for the three cellular telephones and wireless air cardfor the date of the accident between 1:00 p.m. and 3:30 p.m., and to produce Franzone for adeposition. Defendants appeal.
Although disclosure is limited to information that is material and necessary to theprosecution or defense of an action, the discovery statutes are liberally construed and trial courtsare "afforded broad discretion in managing disclosure" (American Assn. of Bioanalysts v New York State Dept. of Health, 12AD3d 868, 869 [2004]; see CPLR 3101 [a]; Andon v 302-304 Mott St.Assoc., 94 NY2d 740, 746 [2000]). The record here contains information indicating thatGrant may have been distracted immediately prior to the accident. There is also conflictingevidence concerning his possible use of the laptop computer in his vehicle. Grant testified at hisdeposition that the laptop was in a bag, either behind his seat or in the passenger seat, that henever used it while driving, and that while driving he never left it strapped to the computer deskbolted to the vehicle. The tow truck driver who arrived at the scene submitted an affidavit statingthat he saw the laptop on the vehicle's computer desk, with the screen flipped up and turned on,indicating recent use. This conflicting evidence raised questions as to whether Grant used anytechnological devices while driving, rendering the records relevant to the question of hisnegligence. Accordingly, Supreme Court did not abuse its discretion in determining that therecords were subject to disclosure (see Andon v 302-304 Mott St. Assoc., 94 NY2d at747; Czarnecki v Welch, 23 AD3d914, 915 [2005]). Disclosure of the records should be limited to a narrow time framesurrounding the accident, namely 2:30 p.m. to 3:30 p.m. (see McMahon v AvietteAgency, 301 AD2d 820, 821 [2003]; Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 475 [2007]).However, the records should be provided for the court to review in camera, with the courtproviding the parties only relevant information redacted to protect defendants' privacy interests(see Morano v Slattery Skanska, Inc., 18 Misc 3d at 475).
The telephones and laptop that Grant possessed on the date of the accident were upgradedfor newer models, the original devices were returned to Hawkeye and those originals possiblycontained information concerning whether they were in use at the time of the accident. Thus,Supreme Court correctly determined that Franzone's deposition could reveal materialinformation (see Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843 [2001]).
Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by requiring defendants Robert D. Grant Jr. and Hawkeye,LLC to provide the demanded cellular telephone and wireless air car records for March 13, 2006from 2:30 p.m. to 3:30 p.m. to the Supreme Court for in camera review, and, as so modified,affirmed.
Footnote 1: A separate action wascommenced in November 2006 by the parents of the other injured passenger against, amongothers, Grant and Hawkeye. The actions were joined for discovery and trial.
Footnote 2: A wireless air card allows alaptop computer to connect to the Internet, as long as the device is in an area where the companyprovides service.