Liederbach v. NYU Langone Hospitals

Background

The court considered two discovery motions. Defendants NYU Langone Hospitals, Gail Chorney, and Jose Labarca III moved under Federal Rule of Civil Procedure 35 for an examination of plaintiff Marijeanne Liederbach’s mental health. Liederbach moved to compel a forensic examination of the personal cellphone of nonparty witness Allison Deleget.

Mental-Health Examination

The court granted the defendants’ Rule 35 motion. Rule 35 permits a court to order a mental or physical examination when the person’s condition is in controversy and there is good cause for the examination. The court found both requirements satisfied because Liederbach seeks damages for extraordinary emotional distress.

The court denied Liederbach’s request that the parties use a neutral examiner or that the court appoint one, explaining that Rule 35 examinations are often conducted by the opposing party’s expert witness. The court also denied her request to limit the examination to two hours and her request to restrict its scope to her mental and emotional condition as related to her breast-cancer diagnosis, termination, and resulting emotional distress. Liederbach had not shown good cause for those limits. The court further stated that counsel generally will not be present during this type of examination absent special circumstances, and Liederbach had not made that showing.

At least two weeks before the examination, the defendants must give Liederbach the examiner’s name, the examination’s scope, and the way it will be conducted, including a list of all tests, assessments, and procedures. Liederbach may then raise objections with the court concerning the examination’s scope, conditions, or manner.

Cellphone Examination

The court denied Liederbach’s motion to compel a forensic examination of Deleget’s cellphone. Deleget had searched her phone for relevant text messages, provided screenshots to defense counsel, and explained that messages from before December 2023 were not transferred when she obtained a new phone. Her prior phone did not save messages to iCloud because that feature was disabled.

The court described forensic examinations of phones and computers as intrusive and generally drastic discovery measures. It found that Liederbach had not shown good cause. Deleget was a third-party witness, not a defendant, and the court found it unreasonable and disproportionate to require her to use an electronic-discovery vendor or turn over her personal phone for an invasive search.

The court also rejected Liederbach’s spoliation argument. It noted that the alleged conduct was Deleget’s changing phones, not conduct by NYU Langone Hospitals, and said it was doubtful that Deleget’s actions could properly be attributed to the defendants. More fundamentally, the court found that the record did not support spoliation because the preservation notice did not identify Deleget as a person whose messages needed to be preserved. The clerk was directed to terminate ECF Nos. 62 and 63. Judge Jeannette A. Vargas therefore granted the defendants’ motion for a Rule 35 mental-health examination and denied Liederbach’s motion for a forensic cellphone examination.