In Muckey v. Levy Employment Law LLC, No. 152917/2025, 2025 WL 1495504 (N.Y. Sup Ct, New York County May 19, 2025), the court denied the petitioner’s request for pre-action discovery – namely, portions of a report regarding what a non-party (C.S.) said about their alleged sexual contact during an investigation culminating in a report finding, among other things, that petitioner committed sexual misconduct.
The court summarized, and applied, the law as follows:
CPLR § 3102 provides for pre-action discovery where petitioner has shown the existence of a meritorious cause of action and that the pre-action discovery is material and necessary to that cause of action (Matter of Uddin v New York City Tr. Auth, 27 AD3d 265 [1st Dept 2006]; Belmont v Bristol-Meyers Squibb Co., 18 AD3d 292 [1st Dept 2005]). Pre-action discovery is not permitted to determine whether a claim exists in the first instance or whether it is worthwhile for a petitioner to pursue (id; see also Holzman v Manhattan and Bronx Surface Tr. Operating Auth., 271 AD2d 346 [1st Dept 2000]).
Defamation is defined as the making of a false statement of fact which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace (Sandals Resorts Intern. Ltd v Google, Inc., 86 AD3d 32 [1st Dept 2011] [internal citation omitted]; see also Dillon v City of New York, 261 AD2d 34 [1st Dept 1999] [“Elements of defamation are a false statement, published without privilege or authorization to a third party … which either causes special harm or constitutes defamation per se”]). “Since falsity is a sine qua non of a libel claim and since only assertions of fact are capable of being proven false, … a libel action cannot be maintained unless it is premised on published assertions of fact” (Brian v Richardson, 87 NY2d 46, 51 [1995]).
Mr. Muckey’s claim that C.S. must have defamed him by lying about their sexual contact during the investigation is an assumption and amounts to conjuncture. Mr. Muckey’s allegation that his interviews with Levy, taken together with the executive summary, suggest that C.S. must have claimed their sexual contact was non-consensual, is guesswork. Mr. Muckey admits he has no actual knowledge as to what, if anything, C.S. actually said about him during the investigation. In addition, Levy interviewed more than 90 individuals. Under these circumstances, Mr. Muckey cannot show he has a meritorious cause of action against C.S. for defamation because he cannot identify any alleged defamatory statement made by C.S. Stated differently, Mr. Muckey doesn’t know whether C.S. defamed him in the first instance, and seeks pre-action discovery to determine whether any of C.S.’s statements are defamatory. This is not a permissible use of pre-action discovery.
[Internal quotation marks and citations omitted.]
The court further explained that, if it were to address the claims by the respondent that the report was privileged, it would find that it is, noting that the respondent law firm “was hired by the Philharmonic to conduct an internal investigation into claims of sexual misconduct by musicians2 and to provide legal advice to the Philharmonic; this is protected attorney-client communication.”