The plaintiffs in DeRiggi v. Krischen, 20753/08, NYLJ 1202476938011, at *1 (Sup., Nassau Decided December 17, 2010) sought to recover for the wrongful death of Patricia DeRiggi, who died at the age of 30 during percutaneous disk decompression surgery, an out-patient procedure used to treat lower back pain.
Plaintiffs allege that Mrs. DeRiggi’s left common iliac vein was perforated twice during the surgery resulting in an intra-abdominal hemorrhage and death. They also allege that the defendants HydroCision and/or New York Spinal Implants, the manufacturer and/or distributor of the Spine Jet HydroDisectomy System used in the procedure, were negligent in their design, manufacture and distribution of the product as well as in misrepresenting the risks affiliated with it, failing to warn and failing to provide proper and adequate instruction and training on its use.
The discovery issue that arose was that Jason DeRiggi testified at his examination before trial that he and his wife visited HydroCision’s website prior to her surgery and read that the procedure “felt like a bee sting and nothing more.” The defendants were concerned that this testimony would be used to support the plaintiff’s claims alleging misrepresentation of the risks and failure to warn.
HydroCision and New York Spinal Implants thus moved for discovery of the DeRiggi’s computer’s hard drive to ascertain whether the DeRiggis, in fact, visited that website, obviously hoping to show that Mr. DeRiggis testimony was manufactured. In support of their motion, the defendants submitted an affidavit by a forensic computer analyst who attested that in order to obtain the information of whether or not Mr. DeRiggi visited HydroCision’s website prior to July 10, 2008, it is necessary for us to harvest a forensic, bit-level copy of the hard drive by either removing Mr. DeRiggi’s computer to our lab for processing or for us to copy the hard drive from Mr. DeRiggi’s computer on site so that we can take the copy of the hard drive to our lab for analysis.”
He agreed to abide by a strict non-disclosure and confidentiality agreement. In opposition, the plaintiffs note that Mr. DeRiggi testified at his examination-before-trial that he and his wife “did not download or save any information on the computer regarding what they saw on the website.”
Moreover, they represent that the computer is regularly used by not only Mr. DeRiggi but people who regularly assist him in caring for his children, i.e., his mother, father, and brother for their consumer transactions, banking, personal e-mails, school work, etc. More importantly, he represented that he uses the computer almost exclusively to communicate with his lawyer, thus implicating the attorney-client privilege.
The plaintiffs also submitted papers from an expert, a Digital Forensic Certified Practitioner, an Access Data Certified Forensics Computer Examiner, a Fellow of the American College of Forensic Examiners and a Certified Forensic Accountant. Supreme Court Justice Karen V. Murphy denied the defendants discovery of the hard drive. The decision cites a line of cases noting that “courts have been loathing to sanction an intrusive examination of an opponent’s computer hard drive as a matter of course.”
The decision also referred to the defendant’s discovery request as a fishing expedition involving risks including the likely violation of the right to the confidentiality of attorney-client communications. A caveat. In this case, it was undisputed (even the moving defendants agreed) that an examination of the computer would not definitively establish that the DeRiggis did not view HydroCision’s website prior to Mrs. DeRiggi’s surgery nor was it demonstrated that an examination of the computer would even establish a strong likelihood that they did not.
But what if the defendants had disputed the potential conclusiveness of the forensic analysis of the hard drive? Would the possibility of disclosure of privileged attorney-client communications still have overridden the materiality of the proposed discovery? Could the defendants expert be trusted to fully abide by the non-disclosure and confidentiality agreement in the context of an unsupervised analysis of the hard drive at a laboratory the defendants retained? We’ll see if this interesting question becomes the subject of an appeal.