Ricci v Discover Bank 2024 NY Slip Op 34346(U) December 12, 2024 Supreme Court, New York County Docket Number: Index No. 157601/2021 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157601/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 157601/2021 MICHAEL RICCI, MOTION DATE 09/13/2024 Plaintiff, MOTION SEQ. NO. 003 -v- DISCOVER BANK, DISCOVER FINANCIAL SERVICES, DECISION + ORDER ON ANA VAZQUEZ, MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90 were read on this motion to/for MISCELLANEOUS .
Upon the foregoing documents, defendant’s motion is denied, and plaintiff’s cross-
motion is granted in part and held in abeyance in part.
Background
Michael Ricci (“Plaintiff”) alleges that while he was dating his now ex-girlfriend Ana
Vazquez (“Vazquez” or “Individual Defendant”), she used his personal information to open a
fraudulent account in his name at Discover Bank (“Discover” or “Corporate Defendant”). When
this was reported, Discover undertook an investigation that concluded that Vazquez had
permission to open the account. Vazquez was later arrested and stated that Discover had not
attempted to verify her statement that she was authorized to open the account. Plaintiff filed suit
against Vazquez and Discover in 2021.
At the time that the suit was filed, Discover was represented by the firm Holland &
Knight LLP. Over the course of discovery (which is not yet complete), the parties exchanged
various documents. These included documents that were stamped “DISCOVER
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CONFIDENTIAL PRODUCTION” at the bottom and documents that contained Plaintiff’s
personally identifiable information. Neither party requested a confidentiality order. Then in
2024, the firm Morgan, Lewis & Bockius was substituted in as Discover’s counsel. When
counsel discovered that there had been no confidentiality order, and that Plaintiff’s counsel had
distributed some of the discovery documents and testimony to third parties, the two sides
conferred on the topic of a confidentiality stipulation and order. While Plaintiff has agreed to the
entry of an order for future discovery, he does not agree to extend that protection to any
documents or testimony already produced.
Discussion
Discover has brought the present motion for an entry of an order for the production and
exchange of confidential information, including the material already produced in the course of
discovery. Plaintiff has opposed and cross-moved for an order compelling discovery of to
produce certain documents and witnesses. For the reasons that follow, Discover’s motion is
denied as to the information produced to date but granted for all forthcoming discovery.
Plaintiff’s cross-motion is granted as to the documents and two of the witnesses requested, with
the rest held in abeyance until after the documents and two witness depositions have been
reviewed.
The Parties Have Waived Confidentiality to This Point
Courts in New York have the power, on their own initiative or by motion of any party, to
issue a protective order limiting the use of discovery material. CPLR § 3103(a). Such
confidentiality orders are “routinely approved and enforced.” Mann v. Cooper Tire Co., 56
A.D.3d 363, 365 (1st Dept. 2008). Courts have broad discretion in tailoring appropriate
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“remedies to prevent the abuse of disclosure devices.” Pursuit Credit Special Opportunity Fund,
L.P. V. Krunchcash, LLC, 227 A.D.3d 628, 628 (1st Dept. 2024). But because of the “broad
constitutional proposition” that the public is generally entitled to have access to court
proceedings, there is a broad “presumption of public access” to such documents. Danco Lab.,
Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6-7 (1st Dept. 2000). Here,
Plaintiff argues that Discover has waived confidentiality on the documents and testimony
produced to date by failing over the course of roughly two years to move for a confidentiality
order. Discover argues that by stamping “CONFIDENTIAL” on the documents, they had not
waived confidentiality.
Under the general concept of waiver:
[d]isclosure of a privileged document generally operates as a waiver of the privilege unless it was shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued. N.Y. Times Newspaper Div. v. Lehrer McGovern Bovis, Inc., 300 A.D.2d 169, 172 (1st Dept. 2002); see also AFA Protective Sys. v. City of New York, 13 A.D.3d 564, 565 (2nd Dept. 2004).
Discover here waited years after producing the documents and long after becoming aware that
the documents were being disseminated to third parties to move for a confidentiality order
protecting the documents and testimony in question. This is not a reasonable time nor is it acting
promptly to remedy the dissemination. While the parties agree on a confidentiality order moving
forward, the Court declines to extend that protection to documents and testimony that has been
produced to date.
Plaintiff’s Discovery Cross-Motion is Granted in Part and Stayed in Part
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Plaintiff has made a cross motion to compel discovery of selected documents and eight
additional witnesses, arguing that Discover’s prior counsel had agreed to the document
production. They also argue that the number of requested witnesses is required due to the
decentralized process and multiple investigations that Discover made into the account in
question. Discover objects on the grounds that the discovery sought is not relevant and that the
additional witnesses would be redundant, given the four that Discover has already produced.
Discover has already, through prior counsel, agreed to produce the documents in question and at
oral argument, counsel for Discover reiterated this position. As regards the requested witnesses,
the Court will permit two of the eight to be deposed, with the rest held in abeyance while
Plaintiff reviews the requested documents and two testimonies.
At oral argument, counsel for plaintiff agreed to limit their request for witnesses to two
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Ricci v Discover Bank 2024 NY Slip Op 34346(U) December 12, 2024 Supreme Court, New York County Docket Number: Index No. 157601/2021 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 157601/2021 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 12/12/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ---------------------------------------------------------------------------------X INDEX NO. 157601/2021 MICHAEL RICCI, MOTION DATE 09/13/2024 Plaintiff, MOTION SEQ. NO. 003 -v- DISCOVER BANK, DISCOVER FINANCIAL SERVICES, DECISION + ORDER ON ANA VAZQUEZ, MOTION Defendant. ---------------------------------------------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 003) 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90 were read on this motion to/for MISCELLANEOUS .
Upon the foregoing documents, defendant’s motion is denied, and plaintiff’s cross-
motion is granted in part and held in abeyance in part.
Background
Michael Ricci (“Plaintiff”) alleges that while he was dating his now ex-girlfriend Ana
Vazquez (“Vazquez” or “Individual Defendant”), she used his personal information to open a
fraudulent account in his name at Discover Bank (“Discover” or “Corporate Defendant”). When
this was reported, Discover undertook an investigation that concluded that Vazquez had
permission to open the account. Vazquez was later arrested and stated that Discover had not
attempted to verify her statement that she was authorized to open the account. Plaintiff filed suit
against Vazquez and Discover in 2021.
At the time that the suit was filed, Discover was represented by the firm Holland &
Knight LLP. Over the course of discovery (which is not yet complete), the parties exchanged
various documents. These included documents that were stamped “DISCOVER
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CONFIDENTIAL PRODUCTION” at the bottom and documents that contained Plaintiff’s
personally identifiable information. Neither party requested a confidentiality order. Then in
2024, the firm Morgan, Lewis & Bockius was substituted in as Discover’s counsel. When
counsel discovered that there had been no confidentiality order, and that Plaintiff’s counsel had
distributed some of the discovery documents and testimony to third parties, the two sides
conferred on the topic of a confidentiality stipulation and order. While Plaintiff has agreed to the
entry of an order for future discovery, he does not agree to extend that protection to any
documents or testimony already produced.
Discussion
Discover has brought the present motion for an entry of an order for the production and
exchange of confidential information, including the material already produced in the course of
discovery. Plaintiff has opposed and cross-moved for an order compelling discovery of to
produce certain documents and witnesses. For the reasons that follow, Discover’s motion is
denied as to the information produced to date but granted for all forthcoming discovery.
Plaintiff’s cross-motion is granted as to the documents and two of the witnesses requested, with
the rest held in abeyance until after the documents and two witness depositions have been
reviewed.
The Parties Have Waived Confidentiality to This Point
Courts in New York have the power, on their own initiative or by motion of any party, to
issue a protective order limiting the use of discovery material. CPLR § 3103(a). Such
confidentiality orders are “routinely approved and enforced.” Mann v. Cooper Tire Co., 56
A.D.3d 363, 365 (1st Dept. 2008). Courts have broad discretion in tailoring appropriate
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“remedies to prevent the abuse of disclosure devices.” Pursuit Credit Special Opportunity Fund,
L.P. V. Krunchcash, LLC, 227 A.D.3d 628, 628 (1st Dept. 2024). But because of the “broad
constitutional proposition” that the public is generally entitled to have access to court
proceedings, there is a broad “presumption of public access” to such documents. Danco Lab.,
Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 A.D.2d 1, 6-7 (1st Dept. 2000). Here,
Plaintiff argues that Discover has waived confidentiality on the documents and testimony
produced to date by failing over the course of roughly two years to move for a confidentiality
order. Discover argues that by stamping “CONFIDENTIAL” on the documents, they had not
waived confidentiality.
Under the general concept of waiver:
[d]isclosure of a privileged document generally operates as a waiver of the privilege unless it was shown that the client intended to maintain the confidentiality of the document, that reasonable steps were taken to prevent disclosure, that the party asserting the privilege acted promptly after discovering the disclosure to remedy the situation, and that the parties who received the documents will not suffer undue prejudice if a protective order against use of the document is issued. N.Y. Times Newspaper Div. v. Lehrer McGovern Bovis, Inc., 300 A.D.2d 169, 172 (1st Dept. 2002); see also AFA Protective Sys. v. City of New York, 13 A.D.3d 564, 565 (2nd Dept. 2004).
Discover here waited years after producing the documents and long after becoming aware that
the documents were being disseminated to third parties to move for a confidentiality order
protecting the documents and testimony in question. This is not a reasonable time nor is it acting
promptly to remedy the dissemination. While the parties agree on a confidentiality order moving
forward, the Court declines to extend that protection to documents and testimony that has been
produced to date.
Plaintiff’s Discovery Cross-Motion is Granted in Part and Stayed in Part
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Plaintiff has made a cross motion to compel discovery of selected documents and eight
additional witnesses, arguing that Discover’s prior counsel had agreed to the document
production. They also argue that the number of requested witnesses is required due to the
decentralized process and multiple investigations that Discover made into the account in
question. Discover objects on the grounds that the discovery sought is not relevant and that the
additional witnesses would be redundant, given the four that Discover has already produced.
Discover has already, through prior counsel, agreed to produce the documents in question and at
oral argument, counsel for Discover reiterated this position. As regards the requested witnesses,
the Court will permit two of the eight to be deposed, with the rest held in abeyance while
Plaintiff reviews the requested documents and two testimonies.
At oral argument, counsel for plaintiff agreed to limit their request for witnesses to two
additional individuals, and to hold in abeyance the demand for additional witnesses beyond those
two pending those depositions. Accordingly, it is hereby
ADJUDGED that defendant Discover’s motion for s confidentiality Order to cover
documents exchanged between the parties to date is denied; and it is further
ORDERED that defendant Discover shall produce to plaintiff not more than 60 days
following the date of service of this Order with notice of entry, the documents listed in the
Exhibit A attachment to discovery demand letter dated March 22, 2024, NYSCEF No. 77; and it
is further
ADJUDGED that plaintiff Michael Ricci’s motion to compel discovery is granted as to the
documents sought and the deposition of S. Hurt and J. Bradle, and it is further
ORDERED and ADJUDGED that defendant Discover Bank shall produce S. Hurt and J.
Bradle for deposition, at a location agreeable to the parties, on a date and at a time convenient for
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the parties, but not more than 90 days following the date of service of this Order with notice of
entry; and it is further
ADJUDGED that defendant Discover Bank’s motion for a protective order is granted as
to discovery documents and testimony produced from the date of entry of this judgment; and it is
further
ORDERED that any Party or, as appropriate, non-party, may designate Documents
produced, or Testimony given, from the date of entry of this judgment, in connection with this
action as “confidential,” either by notation on each page of the Document so designated,
statement on the record of the deposition, or written advice to the respective undersigned counsel
for the Parties hereto, or by other appropriate means; and it is further
ORDERED The Receiving Party may, at any time, notify the Producing Party that the
Receiving Party does not concur in the designation of a document or other material produced
from the date of this judgment as Confidential Information. If the Producing Party does not agree
to declassify such document or material within seven (7) days of the written request, the
Receiving Party may move before the Court for an order declassifying those documents or
materials. If no such motion is filed, such documents or materials shall continue to be treated as
Confidential Information. If such motion is filed, the documents or other materials shall be
deemed Confidential Information unless and until the Court rules otherwise. Notwithstanding
anything herein to the contrary, the Producing Party bears the burden of establishing the
propriety of its designation of documents or information as Confidential Information; and it is
ORDERED that, except with the prior written consent of the Producing Party or by Order
of the Court, Confidential Information shall not be furnished, shown or disclosed to any person
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or entity except to: (a) personnel of the Parties actually engaged in assisting in the preparation of
this action for trial or other proceeding herein and who have been advised of their obligations
hereunder; (b) counsel for the Parties to this action and their associated attorneys, paralegals and
other professional and non-professional personnel (including support staff and outside copying
services) who are directly assisting such counsel in the preparation of this action for trial or other
proceeding herein, are under the supervision or control of such counsel, and who have been
advised by such counsel of their obligations hereunder; (c) expert witnesses or consultants
retained by the Parties or their counsel to furnish technical or expert services in connection with
this action or to give testimony with respect to the subject matter of this action at the trial of this
action or other proceeding herein; (d) the Court and court personnel; (e) an officer before whom
a deposition is taken, including stenographic reporters and any necessary secretarial, clerical or
other personnel of such officer; (f) trial and deposition witnesses, if furnished, shown or
disclosed in accordance with paragraphs 9 and 10, respectively, hereof; and (g) any other person
agreed to by the Producing Party; and it is further
ORDERED that Before any disclosure of Confidential Information is made to an expert
witness or consultant, counsel for the Receiving Party making such disclosure shall provide to
the expert witness or consultant a copy of this Order and obtain the expert’s or consultant’s
written agreement, in the form of Exhibit A attached hereto, to comply with and be bound by its
terms. Counsel for the Receiving Party obtaining the certificate shall supply a copy to counsel for
the other Parties at the time designated for expert disclosure, except that any certificate signed by
an expert or consultant who is not expected to be called as a witness at trial is not required to be
supplied; and it is further
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ORDERED that during the course of this litigation, if a party is subpoenaed by a third-
party with regard to documents covered by the confidentiality provisions of this Order, such
party shall notify the other parties not less than 7 days prior to compliance with such subpoena;
and it is further
ORDERED that this Order shall not preclude counsel for any Party from using during
any deposition in this action any Documents or Testimony which has been designated as
“Confidential Information”; and it is further
ORDERED that a Party may designate as Confidential Information subject to this Order
any document, information, or deposition testimony produced or given by any non-party to this
case, or any portion thereof. In the case of Documents, produced by a non-party, designation
shall be made by notifying all counsel in writing of those documents which are to be stamped
and treated as such at any time up to fifteen (15) days after actual receipt of copies of those
documents by counsel for the Party asserting the confidentiality privilege. In the case of
deposition Testimony, designation shall be made by notifying all counsel in writing of those
portions which are to be stamped or otherwise treated as such at any time up to fifteen (15) days
after the transcript is received by counsel for the Party (or, as appropriate, non-party) asserting
the confidentiality. Prior to the expiration of such fifteen (15) day period (or until a designation
is made by counsel, if such a designation is made in a shorter period of time), all such
Documents and Testimony shall be treated as Confidential Information; and it is further
ORDERED that any person receiving Confidential Information shall not reveal or discuss
such information to or with any person not entitled to receive such information under the terms
hereof and shall use reasonable measures to store and maintain the Confidential Information so
as to prevent unauthorized disclosure; and it is further
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ORDERED that any document or information, produced after the date of entry of the
judgment, that may contain Confidential Information that has been inadvertently produced
without identification as to its “confidential” nature as provided in this Order, may be so
designated by the party asserting the confidentiality privilege by written notice to the
undersigned counsel for the Receiving Party identifying the document or information as
“confidential” within a reasonable time following the discovery that the document or information
has been produced without such designation; and it is further
ORDERED that in connection with their review of electronically stored information and
hard copy documents for production (the "Documents Reviewed") the Parties agree as follows:
(a) to implement and adhere to reasonable procedures to ensure Documents Reviewed that are
protected from disclosure pursuant to CPLR 3101(c), 3101(d)(2) and 4503 (“Protected
Information”) are identified and withheld from production. (b) if Protected Information is
inadvertently produced, the Producing Party shall take reasonable steps to correct the error,
including a request to the Receiving Party for its return. (c) upon request by the Producing Party
for the return of Protected Information inadvertently produced the Receiving Party shall
promptly return the Protected Information and destroy all copies thereof. Furthermore, the
Receiving Party shall not challenge either the adequacy of the Producing Party’s document
review procedure or its efforts to rectify the error, and the Receiving Party shall not assert that its
return of the inadvertently produced Protected Information has caused it to suffer prejudice; and
it is further
ORDERED that within sixty (60) days after the final termination of this litigation by
settlement or exhaustion of all appeals, all Confidential Information produced or designated and
all reproductions thereof shall be returned to the Producing Party or, at the Receiving Party’s
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option, shall be destroyed. In the event that any Receiving Party chooses to destroy physical
objects and documents, such Party shall certify in writing within sixty (60) days of the final
termination of this litigation that it has undertaken its best efforts to destroy such physical objects
and documents, and that such physical objects and documents have been destroyed to the best of
its knowledge. Notwithstanding anything to the contrary, counsel of record for the Parties may
retain one copy of documents constituting work product, a copy of pleadings, motion papers,
discovery responses, deposition transcripts and deposition and trial exhibits. This Order shall not
be interpreted in a manner that would violate any applicable rules of professional conduct.
Nothing in this Order shall prohibit or interfere with the ability of counsel for any Receiving
Party, or of experts specially retained for this case, to represent any individual, corporation or
other entity adverse to any Party or non-party or their affiliate(s) in connection with any other
matter; and it is further
ORDERED that nothing in this Order shall be construed as requiring any party to this
Order to subject itself to any penalties for noncompliance with any court order, subpoena, or
other direction by a court, administrative agency, or legislative body; and it is further
ORDERED that this Order may be changed by further order of this Court and is without
prejudice to the rights of a Party to move for relief from any of its provisions, or to seek or agree
to different or additional protection for any particular material or information.
12/12/2024 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED DENIED X GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
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