In Harms v. Lewis, No. 227 CA 25-00918 (N.Y. App. Div. Apr. 24, 2026), the Supreme Court, Appellate Division, Fourth Department of New York “unanimously affirmed” an order that granted plaintiff’s motion to compel defendants to comply with certain discovery demands after information obtained during the depositions contradicted defendants’ claim that electronic medical record audit trails were no longer available for discovery.

Case Discussion and Judge’s Ruling

In this medical malpractice and wrongful death action, plaintiff had previously requested an order to compel defendants to comply with her fourth notice to produce the audit trails, which was denied. In affirming that order, this Court noted that, “[p]laintiff did not establish that defendants engaged in any willful, contumacious, or . . . bad faith noncompliance with the notice to produce”. This Court concluded that Supreme Court (Marshall, J.) did not err “in dismissing the [first] motion on the ground that defendants substantially complied with the notice to produce” with respect to the audit trails inasmuch as “defendants disclosed decedent’s electronic medical records, which already displayed much of the information sought from the audit trails” and “defendants otherwise provided reasonable explanations for why some of the requested information was no longer available”.

While that previous appeal was pending, the Court noted: “plaintiff took depositions of several representatives of defendants during which those individuals were questioned about the creation, modification, and retention of the audit trails. Some of those representatives had previously provided affidavits in connection with the first motion that, in essence, stated that the audit trails were no longer available. Information obtained during the ensuing depositions of those representatives, however, contradicted some of the central assertions in their affidavits with respect to the audit trails and, indeed, suggested that some of the information sought by plaintiff in relation to the electronic medical records and audit trails may, in fact, still exist and was not disclosed to plaintiff. The depositions also revealed that the representatives were not entirely knowledgeable about defendants’ policies and procedures in retaining the audit trails. Thus, as a consequence of the information obtained during the depositions, plaintiff moved to compel defendants to produce, inter alia, knowledgeable representatives for depositions, defendants’ policies on the preservation and maintenance of records and audit trails, information on how the audit trails were produced, and audit trails from defendants’ data storage system. Supreme Court (Licata, J.) granted plaintiff’s second motion, and defendants appeal.”

Regarding defendants’ contention that the court erred in granting plaintiff’s motion as that decision impermissibly conflicted with this Court’s prior determination that plaintiff was not entitled to disclosure of similar material, the Court stated: “We reject that contention. At the outset, we note again that ‘[t]rial courts have broad discretion in supervising disclosure and, absent a clear abuse of that discretion, a trial court’s exercise of such authority should not be disturbed’…The CPLR provides that ‘[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action’”.

The Court added: “Further, audit trails, such as the ones sought by plaintiff here, are subject to discovery where a plaintiff establishes legitimate questions regarding whether portions of the medical records provided by a defendant have been withheld or altered”.

The Court also stated: “Here, we conclude that the court’s decision to grant the second motion and compel disclosure pertaining to the audit trails–based on the record provided by plaintiff in support of that motion–was not an abuse of the court’s discretion and does not conflict with our prior determination…As noted above, plaintiff’s second motion was based on new information that came to light after Supreme Court (Marshall, J.) decided the first motion and while the prior appeal was pending. Indeed, in concluding that the court had not abused its discretion in denying the first motion, we noted, among other things, that ‘[t]he record [before us] contain[ed] no showing, beyond mere conjecture, that there is relevant information to be gleaned from . . . [the] audit trails’ and that, in opposition to the first motion, ‘defendants otherwise provided reasonable explanations for why some of the requested information was no longer available’”.

The Court also rejected defendants’ “contention that Supreme Court (Licata, J.) was bound by the law of the case to follow our prior decision affirming the order dismissing the first motion”, stating: “We note that the first motion ‘preceded [the] deposition [of defendants’ representatives on the audit trails], which introduced additional evidence and raised further issues, thereby precluding application of the law of the case doctrine’…In any event, even assuming, arguendo, that the law of the case doctrine applied to the…motion court, we note that the doctrine ‘is not binding upon this Court’s review of the order’”.

So, what do you think? How often have you seen a case where information obtained during the depositions led to re-opening of discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

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