| AllianceBernstein L.P. v Atha |
| 2012 NY Slip Op 07766 [100 AD3d 499] |
| November 15, 2012 |
| Appellate Division, First Department |
| AllianceBernstein L.P., Respondent, v William Atha,Appellant. |
—[*1] Gibbons P.C., New York (Paul A. Saso of counsel), for respondent.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered May 11, 2012,which, inter alia, directed defendant to deliver his iPhone to plaintiff's counsel, unanimouslyreversed, on the law, the order vacated, and the matter remanded for further proceedingsconsistent herewith, without costs.
Plaintiff, an investment firm, brought this suit against defendant, a financial analyst, shortlyafter he left plaintiff's employ for another firm. Plaintiff alleges that defendant breached hisemployment contract by, among other things, misappropriating plaintiff's confidentialinformation, including client contact data, and using the information to solicit plaintiff's clientson behalf of his new employer.
Within days of commencing this action, plaintiff sought and obtained a temporary restrainingorder (TRO) prohibiting defendant from retaining or using plaintiff's confidential information.Thereafter, during his deposition by plaintiff, defendant stated that, while working for plaintiff,he had serviced its clients by calling them on his personal iPhone and that the device containedcontact information for a few clients. On plaintiff's subsequent request, defendant turned hisiPhone over to his counsel to comply with the TRO's requirement that he not retain plaintiff'sconfidential information.
Around this time, plaintiff served document requests on defendant which included a demandfor his iPhone's call logs from the date he left plaintiff's employ. When defendant resistedproducing the information on his iPhone on the ground that, among other things, productionwould infringe on his privacy rights, plaintiff wrote a letter to the court stating that a discoverydispute had arisen and requesting that the court hold a pre-motion discovery conference pursuantto its rules. Without giving defendant a chance to respond to plaintiff's letter and without holdinga conference, the court issued an order directing defendant to deliver his iPhone to plaintiff'scounsel within five days of the order's entry "to enable [plaintiff] to obtain the contactinformation it requested at [defendant's] deposition."
The court's order is not appealable as of right because it did not decide a motion made onnotice (see CPLR 5701 [a]). However, in the interest of judicial economy, we deem thenotice of appeal to be a motion for leave to appeal, and grant such leave (see Milton v 305/72 Owners Corp., 19AD3d 133 [1st Dept 2005], lv dismissed and denied 7 NY3d 778 [2006]; CPLR[*2]5701 [c]).
The court should have afforded defendant an opportunity to respond to plaintiff's letterapplication before ruling. Moreover, its order that defendant turn over his iPhone is beyond thescope of plaintiff's request that the court "compel defendant's timely production of the requestedinformation from his iPhone" (emphasis supplied) and is too broad for the needs of thiscase. The TRO adequately addressed plaintiff's concern that defendant may have retainedconfidential information about plaintiff's clients. However, ordering production of defendant'siPhone, which has built-in applications and Internet access, is tantamount to ordering theproduction of his computer. The iPhone would disclose irrelevant information that might includeprivileged communications or confidential information. Accordingly, the iPhone and a record ofthe device's contents shall be delivered to the court for an in camera review to determine what ifany information contained on the iPhone is responsive to plaintiff's discovery request. In camerareview will ensure that only relevant, non-privileged information will be disclosed (see Neuman v Frank, 82 AD3d1642, 1643-1644 [4th Dept 2011]; Detraglia v Grant, 68 AD3d 1307, 1308 [3d Dept 2009]).Concur—Friedman, J.P., Sweeny, Moskowitz, Freedman and Román, JJ.