Summary
In Faragiano v. Concord, 294 App.Div.2d 893, 894, 741 N.Y.S2d 369 (2002), the court held that the trial court had "abused its discretion in granting that part of [the] plaintiffs' cross motion seeking to compel the [t]own to disclose the unredacted diary of a former employee of the [t]own without first reviewing the diary in camera.
Summary of this case from Tower v. MaturoOpinion
CA 01-01794
May 3, 2002.
Appeal from so much of an order of Supreme Court, Erie County (Whelan, J.), entered April 19, 2001, that, inter alia, granted plaintiffs' cross motion seeking, inter alia, leave to conduct further depositions of three present or former employees of defendant Town of Concord.
DAMON MOREY LLP, BUFFALO (BRIAN A. BIRENBACH OF COUNSEL), FOR DEFENDANT-APPELLANT.
PHILLIPS, LYTLE, HITCHCOCK, BLAINE HUBER LLP, BUFFALO (JOHN M. CURRAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PINE, J.P., HAYES, HURLBUTT, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of plaintiffs' cross motion seeking to compel defendant Town of Concord to disclose the unredacted diary of a former employee of defendant Town of Concord and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum:
Supreme Court properly granted that part of plaintiffs' cross motion seeking leave to conduct further depositions of three present or former employees of defendant Town of Concord (Town). It is well settled that the court is vested with broad authority to supervise discovery ( see Baliva v. State Farm Mut. Auto. Ins. Co., 275 A.D.2d 1030, 1031; Andruszewski v. Cantello, 247 A.D.2d 876; Nitz v. Prudential-Bache Sec., 102 A.D.2d 914, 915), and the court's exercise of that authority should not be disturbed absent a clear abuse of discretion ( see Andruszewski, 247 A.D.2d at 876-877; see also MS Partnership v. Wal-Mart Stores, 273 A.D.2d 858, 858). Here, the Town provided certain documents needed for the depositions of the three witnesses at issue either just prior to the first depositions of those witnesses or at the time of those depositions, and thus we conclude that the court did not abuse its discretion in permitting the further depositions of those witnesses.
We agree with the Town, however, that the court abused its discretion in granting that part of plaintiffs' cross motion seeking to compel the Town to disclose the unredacted diary of a former employee of the Town without first reviewing the diary in camera. The court previously had ordered disclosure of the diary, with "any privileged, or personal, non-work related entries that have nothing to do with the occurrence herein to be redacted." A redacted diary was provided and, in now seeking disclosure of the unredacted diary, plaintiffs have raised valid questions concerning the nature of the redactions. We conclude that the court should have reviewed the diary in camera "to determine whether full disclosure is required and to minimize the intrusion into [the] privacy" of the Town's former employee ( Carter v. Fantauzzo, 256 A.D.2d 1189, 1190; see generally Baliva, 275 A.D.2d at 1031). We therefore modify the order by denying that part of plaintiffs' cross motion seeking to compel the Town to disclose the unredacted diary of a former employee of the Town, and we remit the matter to Supreme Court, Erie County, to determine that part of the cross motion following an in camera review of the diary.