Forte v. Mount Sinai Health System, Inc.

Background

Mount Sinai asked the court to intervene in a discovery dispute. It sought an order requiring Jillian Forte to produce her personal cellphone and laptop and provide username and password information for her iCloud, Gmail, Facebook, Twitter, and Instagram accounts to a third-party provider for forensic imaging and document discovery. Mount Sinai offered to pay for the discovery if its preferred provider conducted it. Mount Sinai also asked for help resolving the scope of an electronic stored information protocol.

Mount Sinai argued that Forte had not produced all responsive records from her devices and social-media accounts. It said those records were relevant to Forte’s sexual-harassment claims involving Mount Sinai’s former employee, Silva, and to her claim for emotional-distress damages. Forte objected, describing the requested examination as a digital fishing expedition, and said she had complied with her discovery obligations.

Electronic Discovery

The court stated that text messages and social-media content were clearly important to the claims. The complaint quoted extensively from text exchanges between Forte and Silva, and Mount Sinai asserted that many of their interactions were consensual. The court therefore said it was prepared to give Mount Sinai broad latitude to conduct electronic discovery, subject to a reasonable search protocol.

The court also found that discovery about third parties mentioned in the complaint or identified as potential witnesses was proper. That discovery could include material on Forte’s devices or online accounts referring to those people, as well as relevant conversations between Forte and those people.

The court expressed concern that Forte had later produced telephone records showing 68 calls with Silva over six months and additional text messages after representing that her discovery production was complete. It urged counsel to emphasize to their clients the importance of complete and prompt discovery compliance.

The court declined to resolve the electronic-discovery protocol in detail at that time because the parties’ submissions suggested that some original concerns might already have been resolved. It gave Forte until April 10, 2020, to ensure full compliance. The parties were ordered to submit a joint letter on April 15, 2020, stating whether disagreements remained and, if so, neutrally identifying each disagreement and each party’s position.

Depositions and Disposition

Forte sought to compel depositions of a Mount Sinai representative under Federal Rule of Civil Procedure 30(b)(6) and four additional third-party witnesses concerning the investigation of her sexual-harassment claims. Mount Sinai argued that written discovery should be completed first and that Forte’s deposition should occur before depositions of her witnesses because Mount Sinai had noticed Forte’s deposition first.

The court agreed that written and electronic discovery should be completed before depositions so the depositions would be more useful. It also agreed generally that depositions are taken in the order in which they are noticed, while encouraging the parties to resolve scheduling issues cooperatively.

Judge Paul A. Engelmayer ordered: “The parties’ motion for a discovery conference is denied.” The order did not separately state a disposition for every aspect of Forte’s motion to compel depositions.