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TENER v. CREMER

5059

89 A.D.3d 75 (2011)

931 N.Y.S.2d 552

2011 NY Slip Op 6543

TRILBY J. TENER, M.D., Appellant, v. MIRIAM CREMER, M.D., et al., Defendants. NEW YORK UNIVERSITY LANGONE MEDICAL CENTER, Nonparty Respondent.

Appellate Division of the Supreme Court of New York, First Department.

Decided September 22, 2011.

Attorney(s) appearing for the Case

Wagner Davis, P.C., New York City ( Bonnie Reid Berkow of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York City ( William F. Cusack and Ricki E. Roer of counsel), for respondent.

OPINION OF THE COURT

MOSKOWITZ, J.

This appeal provides us with the first opportunity to address the obligation of a nonparty to produce electronically stored information (ESI) deleted through normal business operations. The action underlying this discovery dispute concerns a statement about plaintiff that someone posted on a Web site known as Vitals.com on April 12, 2009. Plaintiff claims this statement defamed her.1

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