Popat v. Levy et al
Filing
157
ORDER granting 137 Motion to Compel. Signed by Hon. H. Kenneth Schroeder Jr. on 11/5/2021. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SAURIN POPAT, M.D.,
Plaintiff,
v.
15-CV-1052W(Sr)
ELAD LEVY, MD.,
THE STATE UNIVERSITY OF NEW YORK
AT BUFFALO
UNIVERSITY AT BUFFALO SCHOOL
OF MEDICINE AND BIOSCIENCE,
UNIVERSITY AT BUFFALO
NEUROSURGERY GROUP,
UNIVERSITY AT BUFFALO
NEUROSURGERY, INC.,
and
KALEIDA HEALTH,
Defendants.
DECISION AND ORDER
This matter was referred to the undersigned by the Hon. Elizabeth A.
Wolford, in accordance with 28 U.S.C. § 636(b), for all pretrial matters. Dkt. #17.
On February 25, 2021, the day before his scheduled deposition, plaintiff
produced a PDF file containing 19 pages of personal notes identified as: (1) Record of
Events July 7-23, 2014 (8 pages); Levy Incident of Discrimination, Harassment and
Abuse of Authority Addendum: July 31 to August 1, 2014 (4 pages); and (3)
Events/Dates Subsequent to Racial Harassment (7 pages). Dkt. #137-1, ¶ 7-8 & Dkt.
#137-2. At his deposition, which was conducted on March 11, 2021, plaintiff testified
that he referred to these documents during his interview and meeting with Sharon
Nolan-Weiss, Director of the Office of Equity, Diversity and Inclusion at the State
University of New York at Buffalo (SUNY Buffalo”), who was investigating his
complaints, but was never asked to disclose them. Dkt. #137-3, p.4. Dr. Popat testified
that he typed each of the documents contemporaneously, at different times, at home on
a laptop computer which was no longer operational. Dkt. #137-3, pp.2-3. Dr. Popat
testified that he had backed up the docum ents on a flash drive before the computer
ceased to operate. Dkt. #137-3, p.5. He testif ied that he made no alterations to the
documents since he drafted them. Dkt. #137-3, p.5. Plaintiff referred and deferred to
these documents during the course of his deposition testimony. Dkt. #137-1, ¶ 26.
On March 24, 2021, defendants served plaintiff with a request for
production seeking, inter alia, the flash drive/storage device containing the digital file of
his personal notes. Dkt. #137-5, p.2.
On April 23, 2021, plaintiff objected to production of the flash
drive/storage device on the ground that it would also disclose many of plaintiff’s
personal documents that have no relevance to this action. Dkt. #137-6, p.7. Instead,
plaintiff provided a .zip folder containing the original versions of plaintiff’s notes which
were copied from the flash drive/storage device in such a manner as to preserve the
original metadata. Dkt. #137-6, p.7.
By letter dated April 26, 2021, defendants argue that they have a right to
inspect the flash drive/storage device to assess when it was created and if and when it
may have been edited. Dkt. #137-7. Defendants acknowledge that plaintiff’s
representative may be present during the inspection to ensure that the forensic expert
does not access unrelated data. Dkt. #137-1, ¶ 21.
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Currently before the Court is a motion by defendants Elad Levy, M.D.. and
University at Buffalo Neurosurgery (“UBNS”), to compel plaintiff to produce the flash
drive/storage device for inspection by defendants’ forensic computer analyst. Dkt. #137.
In support of the motion, defendants’ forensic analyst affirms that, although analysis of
the laptop would be preferable, the flash drive/storage device would retain electronic
data regarding access to each document, including dates, time, duration of access,
device from which the document was accessed, and whether information was added to
or deleted from the documents. Dkt. #137-8, ¶ 10. Defendants’ forensic analyst further
affirms that the documents provided in the .zip drive does not permit review of this
information and that the basic property information it does reveal can be modified prior
to disclosure. Dkt. #137-8, ¶ 4. Defendants argue that, having failed to produce the
documents as part of plaintiff’s initial disclosure or in response to defendants’ discovery
demands, defendants are entitled to verify that the documents were created
contemporaneously with events that occurred in 2014 and were not supplemented or
altered prior to their disclosure in 2021. Dkt. #137-9. Def endants note that the
documents are the first indication that plaintiff complained about Dr. Levy’s conduct
prior to Dr. Levy’s termination of his position as a Voluntary Clinical Associate Professor
in the Department of Neurosurgery at UB Medical School. Dkt. #137-9, p.5.
Plaintiff affirms that the flash drive/storage device contains thousands of
personal and private documents, including confidential communications with his
attorney and his attorneys’s work product and other privileged documents. Dkt. #141,
¶¶ 1-2. Plaintiff recalls that the documents were created on his personal laptop, an HP
Pavilion dv6000, or a Fujitsu Lifebook T Series. Dkt. #141, ¶ 10. Plaintiff declared that
Best Buy Geek Squad was unable to backup data from the HP Laptop when it ceased
to function in May of 2018. Dkt. #141, ¶ 10. Plaintiff retains possession of the HP
laptop. Dkt. #141, ¶ 13. Plaintiff also retains possession of the Fujitsu Lifebook, which
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still works. Dkt. #141, ¶ 14. Although he does not recall exactly when the documents
were saved to the flash drive/storage device, he affirms that he has “not modified any of
the three documents discussed above since the summer of 2014.” Dkt. #141, ¶¶ 16-17.
Because the documents were written contemporaneously while the events were fresh in
his mind, plaintiff has no doubt that the facts recounted in the documents are entirely
accurate. Dkt. #141, ¶ 18. Plaintiff affirms that he thought he had provided these
documents to counsel and only learned that they had not been disclosed after informing
his attorneys that he had reviewed the documents in preparation for his deposition. Dkt.
#141, ¶ 121. Plaintiff does not object to defendants’ request for the metadata, but
argues that production of copies of the digital files with the metadata preserved is
sufficient and that a forensic analysis of the flash drive/storage device is
disproportionately intrusive. Dkt. #141-1, p.12. Plaintiff’s forensic analyst declares that
he created a forensic image of the flash drive and reviewed metadata from the three
documents at issue, each of which were last modified in 2014. Dkt. #141-2, ¶¶ 3-8. He
also declares that all three documents were first saved to the flash drive on June 9,
2019. Dkt. #141-2, ¶ 14. W hile inspection of the flash drive/storage device would reveal
access to the files, plaintiff’s forensic analyst states it would not reveal whether any of
the files were modified. Dkt. #141-2, ¶ 14.
Defendants question where the documents were stored prior to their
transfer to the flash drive/storage device on June 9, 2019. Dkt. #142, ¶ 9. Def endants
reiterate that they are asking only to access the original flash drive/storage device and
extract the metadata from these three files while in the presence of plaintiff’s forensic
expert. Dkt. #142, ¶ 14. In addition, given plaintiff’s revelation that he is in possession
of two computers on which he may have written the documents - one of which is still
operational - defendants also ask to inspect the computers. Dkt. #142, ¶¶ 17.
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Rule 34(a) of the Federal Rules of Civil Procedure allows a party to serve
a request to produce and permit inspection of designated documents or electronically
stored information. As set forth in Rule 26(b), the scope of such a request is limited to
non privileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case. The Advisory Committee Notes to the 2006 Amendment
specifically recognize that inspection of certain types of electronically stored information
“may raise issues of confidentiality or privacy” and that “[c]ourts should guard against
undue intrusiveness resulting from inspecting or testing such systems.” It is well-settled,
however, “that discrepancies or inconsistencies in the responding party’s discovery
responses may justify a party’s request to allow an expert to create and examine a
mirror image of a hard drive.” Schreiber v. Friedman, 2017 WL 11508067, at *5
(E.D.N.Y. Aug. 15, 2017) (internal quotation omitted). “Courts have also ordered
computer imaging when there is reason to believe that a litigant has tampered with the
computer or hidden relevant materials that are the subject of court orders.” Id.
(collecting cases).
While there is no reason to believe that plaintiff has tampered with the
documents at issue in this matter, the inadvertent withholding of these documents from
plaintiff’s initial disclosure warrants confirmation of the date they were last modified so
as to dispel future arguments over their evidentiary value. To address plaintiff’s privacy
concerns, the parties shall jointly compensate a neutral forensic expert to extract
targeted image files of the three documents, with metadata, from the flash drive/storage
device. The neutral forensic expert shall also be permitted to inspect the Fujitsu
Lifebook T Series for the three documents and, if any of those documents are stored on
the Fujitsu Lifebook T Series, the neutral forensic expert may extract targeted image
files of any of those documents from that device. If the extraction from the flash
drive/storage device and the Fujisu Lifebook T Series is inconclusive as to the creation,
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modification and transfer of the three documents to the flash drive/storage device,
defendants may ask the neutral forensic expert, at defendants’ expense, to inspect the
HP Pavilion HP Pavilion dv6000 to ascertain whether it is possible to extract targeted
image files, with metadata, for the three files at issue from that device.
SO ORDERED.
DATED:
Buffalo, New York
November 5, 2021
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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