who can brief case (Law)

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107 F.R.D. 326, *; 1985 U.S. Dist. LEXIS 16427, **;

2 Fed. R. Serv. 3d (Callaghan) 1497

Gail DAVIS, Plaintiff v. Diana ROSS, Defendant

No. 84 Civ. 1127 (RLC)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF NEW YORK

107 F.R.D. 326; 1985 U.S. Dist. LEXIS 16427; 2 Fed. R. Serv. 3d (Cal-

laghan) 1497

August 28, 1985

[*327] CARTER, District Judge.

Plaintiff Gail Davis has instituted this def-

amation action, seeking one million dollars in

compensatory damages and one million dollars

in punitive damages, based on an October 11,

1983 letter written and disseminated by de-

fendant Diana Ross. Familiarity with the pre-

viously filed opinions in this case, Davis v.

Ross, 602 F. Supp. 504 (S.D.N.Y. 1984) (Carter,

J.), rev'd, 754 F.2d 80 (2d Cir. 1985), is as-

sumed. The case is currently before the court

on the parties' cross-motions to compel discov-

ery.

Davis seeks discovery of three sets of data.

First, she wishes to obtain information con-

cerning Ross' net worth and annual income.

Davis argues that this material is discoverable

because evidence of a defendant's wealth is

relevant in an action for punitive damages.

Ostano Commerzanstalt v. Telewide Systems,

Inc., [**2] 608 F. Supp. 1359 (S.D.N.Y. 1985)

(Carter, J.); Rupert v. Sellers, 48 A.D.2d 265,

368 N.Y.S.2d 904 (4th Dep't 1975).

The New York courts have recognized,

however, that a plaintiff's interest in proving

the amount of the defendant's wealth must be

balanced against the defendant's right to priva-

cy and general desire not to divulge his or her

financial status--especially since plausible

claims for punitive damages can easily be made

in many actions. Id. at 271, 368 N.Y.S.2d at

911. Consequently, the rule in New York is that

"evidence of defendant's wealth [can] not be

brought out upon trial unless and until the jury

[brings] in a special verdict that plaintiff is en-

titled to punitive damages against defendant."

Id. at 272, 368 N.Y.S.2d at 912. Discovery of

defendant's net wealth will become necessary

only in the event plaintiff obtains such a special

verdict. Id., 368 N.Y.S.2d at 913.

Davis argues that the rule of Rupert v.

Sellers should not govern this case because she

entered into a confidentiality order which, she

says, should eliminate any concern for privacy

on defendant's part. Defendant responds, quite

rightly, that the [*328] existence of a confi-

dentiality [**3] order does not undermine the

rationale of Rupert v. Sellers. Ross should not

be compelled to disclose private facts to any-

one--even to someone who has agreed to keep

the information confidential--until it is found

that plaintiff is entitled to punitive damages. As

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2 Fed. R. Serv. 3d (Callaghan) 1497

a federal court sitting in New York, we are re-

quired to follow and apply the rule of Rupert v.

Sellers. See, e.g., Brink's, Inc. v. City of New

York, 717 F.2d 700, 707 (2d Cir. 1983);

Doralee Estates, Inc. v. Cities Service Oil Co.,

569 F.2d 716, 723 n.9 (2d Cir. 1977). The mo-

tion to compel discovery of Ross' wealth and

income is denied.

Plaintiff's second discovery request is for

documents reflecting billings by the law firm of

Loeb & Loeb and/or John Frankenheimer (a

partner in the firm) to Ross and to entities in

which she has an interest, and for the records

reflecting payment of such bills. Plaintiff ar-

gues that this material is discoverable because

the defendant has stated that Frankenheimer

will be an important witness; therefore, plaintiff

asserts, the amount of fees Ross paid Franken-

heimer would be relevant to the issue of

Frankenheimer's bias and credibility.

Plaintiff is entitled to probe for [**4] bias

by inquiring into the existence and nature of the

relationship between Frankenheimer and Ross.

Specifically, plaintiff may discover what, if

any, fee arrangements and retainer agreements

were entered into between the two. See Rum-

rill-Hoyt, Inc. v. Perri, 97 A.D.2d 951, 468

N.Y.S.2d 754 (4th Dep't 1983). However, the

amount of fees earned, without more, is not

probative of a witness' bias. See Evans v. Unit-

ed States, 326 F.2d 827, 831 (8th Cir. 1964).

Even where a witness' entire livelihood derives

from employment by the party for whom he

testifies, courts have declined to infer bias from

the mere fact of employment. See Mangan v.

Broderick and Bascom Rope Co., 351 F.2d 24,

29 (7th Cir. 1965), cert. denied, 383 U.S. 926,

15 L. Ed. 2d 846, 86 S. Ct. 930 (1966). In this

case, the court is especially reluctant to pry into

the details of the attorney-client relationship or

to order burdensome discovery. Consequently,

plaintiff's motion to compel discovery of legal

fees is denied.

Plaintiff's third request is to discover the

names of other employees who have com-

plained about defendant, and the nature of their

complaints. Plaintiff's argument for discovera-

bility rests [**5] on the Second Circuit's in-

terpretation of the allegedly libelous letter in

question. In the letter, Ross stated that Davis no

longer worked for her, and then wrote: "If I let

an employee go, it is because their work or

their personal habits are not acceptable to me. I

do not recommend these people." According to

the Court of Appeals, the statement, "I do not

recommend these people," tends to objectify

Ross' evaluation of Davis, and implies that oth-

ers would also find Davis' work or personal

habits unacceptable. Davis v. Ross, supra, 754

F.2d at 85-86. 1

1 To be precise, the Second Circuit did

not hold that this is the only possible in-

terpretation of the letter, but rather that

the letter is "reasonably susceptible of

several interpretations at least one of

which is potentially libelous [and that] it

is for the trier of fact to determine in

what sense the words were actually

used." Davis v. Ross, supra, 754 F.2d at

86.

Plaintiff argues that the truth of this state-

ment--that Davis' work or personal [**6] hab-

its are objectively unacceptable--will be at is-

sue. Consequently, plaintiff asserts, the materi-

al sought is discoverable because "if in fact it

was defendant's personality that was a problem

and not plaintiff's the jury would be entitled to

conclude that there was nothing objectionable

about plaintiff's work or personal habits and

that defendant is liable for defamation." (Plain-

tiff's letter dated July 3, 1985, at 9).

The logic of plaintiff's argument is tenuous.

Whether Ross is a "good" or "bad" employer,

popular or unpopular with employees, is not

probative of whether Davis' personal or work

habits were objectively satisfactory. Even if

other employees have complained about Ross,

that would not affect a jury's assessment of Da-

vis' personal or work habits one way or the

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2 Fed. R. Serv. 3d (Callaghan) 1497

other. The issue in this case is whether [*329]

Ross libeled Davis, and the material plaintiff

seeks to discover does not bear on that.

Plaintiff also argues that the information is

discoverable because it bears on Ross' credibil-

ity (Plaintiff's letter dated July 3, 1985, at 9).

The court simply does not see the connection

between Ross' reputation as an employer and

her capacity for truth-telling. In [**7] short,

the information sought by plaintiff is irrelevant

to any material issue, and is not calculated to

lead to any admissible evidence. Consequently,

plaintiff's motion is denied.

The court turns now to the motion to com-

pel discovery brought by defendant. Ross seeks

discovery of Davis' treatment by a psychiatrist

during the period Davis worked for Ross, ar-

guing that the material is relevant and that any

physician-patient privilege has been waived.

When the mental or physical condition of

the plaintiff is in issue, the physician-patient

privilege is waived and cannot be invoked to

foreclose discovery of relevant evidence. E.g.,

Prink v. Rockefeller Center, Inc., 48 N.Y.2d

309, 316-17, 422 N.Y.S.2d 911, 915-16, 398

N.E.2d 517 (1979). Defendant argues that

plaintiff put her mental condition in issue when

she sued to recover for "great mental pain and

anguish" (Complaint para. 17).

It is generally true that "where compensa-

tion is sought for personal injury, the health of

the plaintiff before and after the accident may

be inquired into. This principle would seem to

have equal applicability to an emotional or

mental injury when that is what a plaintiff

seeks compensation for." [**8] Miller v.

Colonial Refrigerated Transportation, Inc., 81

F.R.D. 741, 742 (M.D. Pa. 1979) (citations

omitted) (emphasis added). See also Mancinelli

v. Texas Eastern Transmission Corp., 34

A.D.2d 535, 308 N.Y.S.2d 882 (1st Dep't 1970)

(psychiatric treatment held relevant and dis-

coverable when damages sought for mental in-

jury); Awtry v. United States, 27 F.R.D. 399,

402 (S.D.N.Y. 1961) (Bryan, J.) (plaintiff's

medical and psychiatric history discoverable

where plaintiff alleged mental anguish as result

of the entry on his medical chart that he was a

hypochondriac).

Plaintiff argues, however, that her mental

condition is not in issue, notwithstanding her

claim for mental pain and anguish, because her

action is one for libel per se 2 and in such ac-

tions under New York law, general damages

are presumed and need not be specifically

pleaded or proved. E.g. Hinsdale v. Orange

County Publications, Inc., 17 N.Y.2d 284, 270

N.Y.S.2d 592, 217 N.E.2d 650 (1966); Mencher

v. Chesley, 297 N.Y. 94, 75 N.E.2d 257 (1947);

Arizona Biochemical Co. v. Hearst Corp., 302

F. Supp. 412 (S.D.N.Y. 1969) (Edelstein, J.).

Under plaintiff's view of New York law, it is

unnecessary for [**9] her to prove either the

existence or amount of damages. Consequently,

plaintiff argues, information relating to the ex-

istence or amount of mental pain and anguish is

not relevant and therefore not discoverable.

2 Defendant does not dispute that this

is an action for libel per se.

Defendant contends that New York's rule

permitting recovery for presumed damages in

libel cases has been overruled by Gertz v. Rob-

ert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789,

94 S. Ct. 2997 (1974), and that New York

courts, in conformance with the Supreme

Court's ruling, now require plaintiffs in cases of

libel per se to prove they were damaged (in the

absence of a showing of actual malice). Mo-

ran v. Hearst Corp., 40 N.Y.2d 1071, 392

N.Y.S.2d 253, 360 N.E.2d 932 (1976)

(Fuchsberg, J., concurring); Hogan v. Herald

Co., 84 A.D.2d 470, 446 N.Y.S.2d 836 (4th

Dep't), aff'd, 58 N.Y.2d 630, 458 N.Y.S.2d 538,

444 N.E.2d 1002 (1982); France v. St. Clare's

Hospital and Health Center, 82 A.D.2d 1, 441

N.Y.S.2d 79 [**10] (1st Dep't 1981); Salo-

mone v. MacMillan Publishing Co., Inc., 77

A.D.2d 501, 429 N.Y.S.2d 441 (1st Dep't 1980).

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2 Fed. R. Serv. 3d (Callaghan) 1497

Consequently, defendant argues, plaintiff's

mental condition is very much in issue in this

case, and treatment by a psychiatrist is highly

relevant.

Defendant is correct in stating that recovery

for presumed damages in libel cases [*330]

was declared unconstitutional in Gertz, in the

absence of actual malice. However, the Su-

preme Court of the United States has recently

cut back on the rule in Gertz, in Dun & Brad-

street v. Greenmoss Builders, Inc., 472 U.S.

749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985).

The Court held that in cases involving a pri-

vate-figure plaintiff and no matters of public

concern, states may permit recovery for pre-

sumed damages, even without a showing of

actual malice. The instant case falls within the

category of cases contemplated by Dun &

Bradstreet: plaintiff is a private figure, and no

matters of public concern are implicated. In the

wake of Dun & Bradstreet, New York courts

are once again free to presume general damages

in cases like the instant one.

It is not clear whether New York will retain

the protection afforded [**11] by Gertz or

will now return to the pre-1974 rule authorizing

recovery for presumed damages. 3 But even if

plaintiff's view of the law prevails and pre-

sumed damages are reinstated, that does not

mean that information relating to the existence

or amount of damages is irrelevant or not dis-

coverable. General damages may be presumed,

but defendant must be permitted to rebut the

presumption, to try to disprove the existence of

damage. See Dun & Bradstreet v. Greenmoss

Builders, Inc., supra, 105 S. Ct. at 2949 (White,

J., concurring). 4 Moreover, the amount of

damages will always be in issue; plaintiff seeks

one million dollars in compensatory damages,

and evidence must be introduced to demon-

strate that the award should be more than nom-

inal. See Wood v. Lee, 41 A.D.2d 730, 341

N.Y.S.2d 738 (1st Dep't 1973) (it is assumed

that defamation causes some damage though it

be nominal). Plaintiff may not sue to recover

for mental pain and anguish, only to deny the

defendant the evidence she needs to argue that

there was no damage, or that the amount of

compensation sought is excessive. 5

3 Though by no means certain, the

court believes that New York will now

re-adopt the pre-Gertz rule in pri-

vate-figure plaintiff libel per se cases in-

volving no matters of public concern.

The old rule was well-entrenched in New

York before Gertz uprooted it, see e.g.,

Bishop v. New York Times Co., 233 N.Y.

446, 135 N.E. 845 (1922), and the recent

New York cases barring recovery for

presumed damages make clear that New

York law changed only because the Su-

preme Court said it had to. E.g. Moran

v. Hearst Corp., supra, 40 N.Y.2d at

1073 ("while it is true that, until recently,

a plaintiff who alleged libel per se was

accorded a presumption that harm to rep-

utation followed from libel, since the

United States Supreme Court's ruling in

Gertz v. Robert Welch, Inc., a private

person who alleges libel, even libel per

se, is held to a strict requirement of the

actual damages to be proved")

(Fuchsberg, J., concurring) (citations

omitted); Hogan v. Herald Co., supra, 84

A.D.2d at 480, 446 N.Y.S.2d at 843 ("the

law in New York governing libel per se .

. . . has necessarily been modified in

news media cases by these constitutional

decisions which prohibit the recovery of

presumed damages . . . . these constitu-

tional rules are conceptually inconsistent

with New York decisions").

[**12] 4 But see Matherson v. Marchello, 100

A.D.2d 233, 473 N.Y.S.2d 998, 1002 (2d

Dep't 1984) ("in the law of libel the ex-

istence of damage is conclusively pre-

sumed from the publication itself") (em-

phasis added). Even if the presumption of

the existence of damage is conclusive

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2 Fed. R. Serv. 3d (Callaghan) 1497

and not rebuttable, the amount of damage

is still in issue and not conclusively de-

termined.

5 Defendant also argues that the psy-

chiatric material is relevant to the issue

of whether the allegedly libelous state-

ment was true--whether Davis' personal

or work habits truly were objectively

unacceptable. In light of the court's deci-

sion based on the relevance of the mate-

rial to the issue of damages, it is unnec-

essary to reach defendant's other argu-

ment.

Accordingly, defendant's motion to compel

discovery of plaintiff's treatment by a psychia-

trist is granted.

IT IS SO ORDERED.