Document for Vera Itzhakov as Proposed Administrator of the Estate of IRENA BELIAKHOV, Deceased, Vera Itzhakov Individually v. Coney Island Hospital, New York City Health And Hospitals Corporation

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                                FILED: KINGS COUNTY CLERK 01/31/2024 11:53 AM         INDEX NO. 507320/2021
NYSCEF DOC. NO. 53                              RECEIVED NYSCEF: 01/31/2024




                     EXHIBIT S
FILED: KINGS COUNTY CLERK 01/31/2024 11:53 AM                                                    INDEX NO. 507320/2021
NYSCEF DOC. NO. 53                                                                       RECEIVED NYSCEF: 01/31/2024




                                                     June 5, 2023
          VIA EMAIL & REGULAR MAIL
          The Jacob Fuchsberg Law Firm, PLLC
          Attn: Kevin Lee, Esq.
          3 Park Avenue – Suite 3700
          New York, New York 10016

          Re:    VERA ITZHAKHOV, as Administrator of the Estate of IRENA BELIAKHOV, Deceased,
                 and VERA ITZHAKHOV, Individually, v. CONEY ISLAND HOSPITAL AND NEW
                 YORK CITY HEALTH AND HOSPITALS CORPORATION.
                 FKB File No. :  625.250
                 Index No.    :  507320/2021
          Dear Mr. Lee:

                 As you will recall, the Court’s Compliance Conference Order dated February 3, 2023
          (“February 2023 Order”) directed:
                 “Plaintiff to produce all original video and audio recordings and original
                 photographs by February 17, 2023. Those files should not be duplicate files created
                 on a later date, but rather, should be the original files that were created immediately
                 at the time of the occurrence of the respective event which they depict. Those
                 original files must contain the date they were created and the device from which
                 they were obtained.”
                  To date, Plaintiff has still not produced any of the required original files. Notably, your
          recent production via Dropbox and iCloud on May 19, 2023, was once again devoid of any original
          files. Neither Dropbox nor iCloud is a means for producing original files.
                 Your recent offer for our expert to attend your office for the purpose of extracting the data
          from Plaintiff’s phone misunderstands the requirements of the February 2023 Order and Plaintiff’s
          discovery obligations.
                 First, Plaintiff was ordered to produce all of the original files – not to make Plaintiff’s
          phone available for inspection.
                  Second, Plaintiff – not Defendant – must bear the cost of retaining an expert to extract and
          produce the original files that Plaintiff was required to produce by the February 2023 Order. See,
          U.S. Bank Nat. Ass'n v. GreenPoint Mortg. Funding, Inc., 94 A.D.3d 58, 62 (1st Dept. 2012) (“it
          is the producing party that is to bear the cost of the searching for, retrieving, and producing
          documents, including electronically stored information”); see also, Allen v. Yertle Operations LLC,
          70 Misc. 3d 934, 947 (Sup. Ct. N.Y. Cty. 2020) (“Examples of costs that are not subject to shifting
          include … retaining a forensic technological expert to pursue a search for the metadata”); Doe v.
          Bivins, No. 150400/2017, 2018 WL 3439805, at *2 (Sup. Ct. N.Y. Cty. 2018) (“Plaintiff’s excuse
          for not providing metadata is that she possesses neither the technical proficiency to produce such
FILED: KINGS COUNTY CLERK 01/31/2024 11:53 AM                                                      INDEX NO. 507320/2021
NYSCEF DOC. NO. 53                                                                         RECEIVED NYSCEF: 01/31/2024




          metadata nor the resources to retain a forensic technological expert to pursue a search for the
          metadata … This is not a meritorious excuse”).
                  Third, Plaintiff’s phone is not the only reservoir for the original files that Plaintiff was
          ordered to produce. Based on Plaintiff’s own testimony, some of those files are located on
          Plaintiff’s husband and cousin’s phones. See Plaintiff’s Deposition Transcript, 165:8–166:5.
          Moreover, when questioned on whether those phones still exist, Plaintiff testimony indicated that
          she had access to all three phones. See, Id., 165:25 (“Yes. Yes sir, we have everything”).
                   Defendant accordingly requests that Plaintiff produce all original video and audio
          recordings and original photographs within 7 days of the date of this letter. Alternatively, insofar
          as it has become apparent that Plaintiff is unable to comply with her discovery obligations, attached
          please find a proposed stipulation in which Plaintiff agrees that she will not use any of the photos,
          video or audio recordings relating to the instant action. This letter is a good faith effort on the part
          of Defendant to quickly and amicably resolve this matter without resorting to motion practice.
          Thank you for your anticipated cooperation.

                                                    Very truly yours,
                                      FURMAN KORNFELD & BRENNAN LLP

                                            Christopher P. Fox
                                                   Christopher P. Fox