Nonparty Discovery Allowed in Take Home Exposure Case Supreme Court, State of New York County of Nassau, February 21, 2019
NEW YORK — The instant motion by the defendants Ford Motor Company and Hennessey Inc. stems from lawsuit filed on behalf of decedent Frances Lange; the plaintiffs assert that Mrs. Francis Lange (Frances) contracted mesothelioma as a result of the inhalation of asbestos during the course of laundering her deceased husband’s (Carl) and son’s (Jeffery) clothing. On November 12, the defendant Ford requested authorizations for Carl and Frances’ Social Security records, in response the plaintiff only provided Francis’ records. Ford also requested Carl and Jeffery’s military records.
During a conference on November 13, the court disallowed the application of Ford to direct the plaintiffs to provide authorizations for Carl’s Social Security and military records. Ford requested reconsideration from the court and on December 12, after no opposition was received, the court directed the plaintiffs provide the authorizations within 40 days or move for protective order within 30 days. The paintiffs then filed for a protective order, objecting because Carl was not a party to the action.
Under Kapon v. Koch, a party seeking discovery from a nonparty (Carl) must state “the circumstances or reasons underlying a subpoena, either on the face of the subpoena or by a notice accompanying it, and a person who moves to quash must establish that the discovery sought is ‘utterly irrelevant’ to the action, or that the ‘futility of the process to uncover anything legitimate is inevitable or obvious.'” The court held that the plaintiffs did not establish either of these criteria as an objection to production. The nature of Carl’s employment was relevant because plaintiffs asserted that Frances was exposed to asbestos from the laundering of Carl’s work clothes.
The court noted that the defendants were not seeking Carl’s medical records or history, but rather his work history and potential exposures to asbestos, the source or sources of which were at the heart of the plaintiffs’ allegations. Thus the court denied the plaintiffs’ motion for protective order, and directed the plaintiffs to provide authorizations within 20 days of receipt of proper subpoenas.