Digging through an old file on a settled case, I came across some notes that I made during a deposition I was defending. It was a simple hit in the rear auto case and I jotted down some of the questions the defense lawyer asked.

Each question, it seemed, was more wretched than the next. None were spoken in plain English:

What were the points of impact between your vehicle and the adverse vehicle?

Were there any traffic control devices?

Did  you notice blood on your person?

Did you get out of the vehicle yourself or did you get out with assistance?

What was the nature of your conversation?

The worst part about these questions, I think, is that the lawyer was working from a script.

I’m fairly confident that any 10-year-old could ask better questions. All you really need, to get this type of basic information, is natural human curiosity to find out what happened. It was the tortured attempt to sound like a lawyer that made me laugh to myself and take notes.

I was reminded of those notes yesterday when I read Bryan Garner’s blog post:  Is there ever a good reason to use “hereby” in your writing?

It isn’t really hard to abuse the English language. All you need to do is go to law school.

Perhaps some young lawyers out there will recognize themselves as they struggle to ask deposition or trial questions.

Another defendant attempts to get access to a personal injury plaintiff’s Facebook and other social media accounts, and another defendant is shot down by an appellate court.

This one comes out of New York’s Appellate Division (4th Department). Kregg v. Maldonado, decided a few days ago,  deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case, which I discussed two years ago. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.” But there wasn’t.

The defendants were, in essence, on a simple fishing expedition (or, perhaps, a billing expedition) hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.

There’s a nice decision out of the Appellate Division (First Department) this week that pertains to putting the breaks on litigation disclosure in personal injury cases that is, all too often, out of control in breaching privacy protections. In particular, it deals with HIV records as well as drug/alchohol records and mental health records.

This type of stuff can show up in a medical chart for even a routine car accident as doctors and nurses take histories and social workers plumb the depths of a patient’s worries and concerns. But.  Just because a defendant is entitled to “full disclosure of all matter material and necessary in the prosecution or defense of an action” does that mean they can get these highly privileged (and potentially quite prejudicial) documents?

Enter, stage right, the decision a few days ago in Del Terzo v. Hospital for Special Surgery. The appellate bench explores the conflicting interests of the patient’s desire for privacy and the defendant’s desire to go fishing around the records for anything that might help it.

And the winner here is the patient, thanks to the special protections of New York’s Public Health Law as well as the Mental Hygiene Law. Both have provisions that specifically protect the patients from such nosiness.

With respect to HIV, the defendant must show, according to the Public Health Law,  ”a compelling need for disclosure of the information for the adjudication of a criminal or civil proceeding.” While that would seem to come into conflict with the “full disclosure of all matter material and necessary” to defend the action, the PHV has supremacy because of these magic words: ”Notwithstanding any other provision of law, no court shall issue an order for the disclosure of confidential HIV related information, except . . . in accordance with the provisions of this section.”  And the court added for good measure, recognizing that these demands had nothing to do with this particular claim:

Nor have defendants even suggested, on the basis of the medical records provided, that there is any history of HIV or AIDS. Indeed, defendants seem to be engaged in a fishing expedition.

Turning to the drug and mental health requests, the court was no less helpful to the defendant, pointing out that mental health information shall not be released except “upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality.” The defendant got hammered again by the court, when it wrote:

The interests of justice standard…has not been met in this case where defendants seek the disclosure of confidential records on the basis of nothing more than a generalized assertion that substance abuse and mental illness can affect a person’s level of stress, ability to work and life expectancy.

This is a good case to keep in the breast pocket when those defense demands come pouring. Or  for those times a hospital demands that people waive all their disclosure rights or it won’t furnish records in response to an authorization requesting records. Those records need to be redacted.

A final note: This is the type of objection that should be raised for all such requests, regardless of whether such records even exist. Because if an objection is made only on a selective basis, it tips the hand as to what the records might hold.

Demand in personal injury suits for Facebook details are becoming more common, as I’ve posted about recently. One of the defense arguments is that there is no expectation of privacy for things posted on Facebook, regardless of the privacy settings, so the lawyers should be able to snoop.

Now, just so the record is clear, Facebook says otherwise. In a posting today on its own site, Chief Privacy Officer Erin Egan wrote that there is an expctation of privacy. The reason for her post was a recent story where employers were asking job applicants for their Facebook passwords, or to have one of their managers “friended,” so that the company could go rummaging around in the personal lives of the applicant. Sort of like asking to see someone’s email account, only much worse. She wrote that “This practice undermines the privacy expectations and the security of both the user and the user’s friends.”

Egan wrote with respect to the expectation of privacy and delving into the accounts:

This practice undermines the privacy expectations and the security of both the user and the user’s friends.

There is a clear parallel here to the litigation setting. Users write with an expectation of privacy, and friends of those users do also. So says Facebook. Should a court permit unlimited snooping, it isn’t just the litigant who has been probed by the lawyer, but all of the litigants friends.

Three weeks ago I ran a story on a New York federal court decision that denied a defendant access to a plaintiff’s Facebook account. Then, two days ago, a Florida federal court decision came out on the same topic. I was about to do a simple update of my original post.

But. While this was a different case, the defendant was the same, Novartis Pharmaceuticals. And the subject dealt with the same medical drug, Zometa, and the same medical condition, osteonecrosis of the jaw. And the law firm is the same, Hollingsworth.

The result isn’t much different either. Novartis made broad claims about wanting unfettered access to the Facebook account of the plaintiff that took the drug, hoping no doubt for a no-holds barred fishing expedition through the plaintiff’s life.

The court however, stuck to this little thing called relevance, and shot down 99% of the defendant’s fishing attempt. Defendant’s broad demands were for the plaintiff to:

(1) produce the log-in information to his Facebook account and any other social networking websites he may belong to; and

(2) execute a waiver allowing Defendant to directly obtain these materials held in the corresponding databases;

or, in the alternative, directing Plaintiff to produce all photographs added to any social networking website that depict Plaintiff from the date of the development of his alleged injury, regardless of who posted the photograph.

In Childs v Novartis, Magistrate Judge Joel Toomey wrote that Novartis was clearly overreaching, and said that Hollingsworth’s demand was not “reasonably calculated to lead to the discovery of admissible evidence” and that this was “the proverbial fishing expedition.”

As an alternative to striking down the entire request, the plaintiff had suggested that if there were pictures of the plaintiff actually eating (and therefore using his jaw) that might be discoverable, and that is all that the court granted.

A pattern has emerged. And the question is, will Hollingsworth, having now lost twice (that I am aware of), continue to swing away with its wiffle ball bat?

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.

The City of New York has once again been shot down by an appellate court for failing to provide discovery in personal injury actions where it is a defendant. In two separate actions last week the Appellate Division First Department reversed lower court rulings that had failed to strike the Answers of the City for non-compliance.  The appellate court granted automatic wins for the plaintiffs after years of being frustrated by City failure to provide discovery.

Last year I  wrote about one of those cases,  Elias v. City, a trip and fall case where the city had repeatedly ignored discovery orders.The Appellate Division First Department slammed the City with a $7,500 sanction. The Appellate Division, now further disgusted by the City’s lack of compliance, wrote:

Although we previously directed defendant to comply fully with the outstanding discovery requests and ordered it to pay plaintiff $7,500 as a penalty for the delay in complying (71 AD3d 506 [2010]), defendant has still failed to comply fully. Over a three-year period, the City has repeatedly failed to provide discovery, despite nine court orders and sanctions imposed by this Court. These circumstances “create[ ] an inference of willful and contumacious conduct” (Brewster v FTM Servo, Corp., 44 AD3d 351, 352 [2007]) and warrant the ultimate sanction of striking defendant’s answer.

…

In sum, although over three years had passed since plaintiff had first sought this discovery which is central to the prosecution of his action, and despite the nine court orders directing defendant to comply with outstanding discovery, the motion court acceded to defendant’s request to be given one more opportunity to provide the discovery. Defendant has offered no excuse for its failure to produce the documents. Apparently, the imposition by this Court of a significant sanction was not sufficient to deter defendant from continuing its cavalier noncompliance with court-ordered discovery. In our view, the history of defendant’s untimely, unresponsive and lax approach to complying with the court’s previous orders warrants the striking of defendant’s answer (see Byam v City of New York, 68 AD3d 798 [2009]).

See that citation to Byam at the end? That is a Second Department case that the First Department is citing to.

The newfound determination to hold the City accountable for discovery failures, the same as other litigants, has a deep history to it, and reflects a reversal two years ago in the patience that the courts have had with City cases. The City’s Corporation Counsel published a top 10 list of recommendations on how the courts could be made more efficient and asked that “Judges must be made more accountable.” He had a variety of “performance measures” in mind.

The appellate judges were not amused, and 18 out of 20 of the First Department judges castigated the City in an unprecedented letter to the New York Law Journal. That letter contained this passage, which should have been seared into the minds and conduct of the City’s laweyrs:

In fact, it is ironic that the Corporation Counsel blames the courts for a failure to deal appropriately with litigation delays, since it is the office of Corporation Counsel of the City of New York that plays a significant role in causing those undue delays. For one thing, there is always a backlog of ready city cases in the dedicated city parts, and, with each part being assigned only two city attorneys, neither plaintiffs’ attorneys nor the trial judges have the means to ensure that ready cases can proceed immediately to trial; the city alone wields that authority.

A vast amount of inefficiency impeding the resolution of litigation is also created by the city’s oft-demonstrated cavalier attitude toward its discovery obligations. The city’s almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city’s intransigence (see e.g., Lewis v. City of New York, 17 Misc. 3d 559 [2007]).

The City was being  hoisted up on its own petard, claiming that the Courts were infeffcient while itself causing delays. While the First Department judges had oft times given the City a break when it came to its past failures – “[A]s a rule, our courts give far more leeway to the city than we typically do to other defendants in civil actions — that time has now clearly come to an end.

The second case the Court decided last week on the subject was Henderson-Jones v. City of New York, in which 10 police officers entered her home without a warrant, found marijuana, arrested her, subjected her to strip searches, and detained her for 30 hours before she was released without charges. The plaintiff was able to identify two of the officers by remembering their badge numbers. One repeatedly refused to show up for deposition and  the City claimed it could not identify the others.

Both the First and Second Departments have clearly weighed in on the City’s repeated failures and delays, and it seems, a new era of accountability is being forced upon it.

(hat tip —  New York Law Journal)

Like having a private investigator in your pocket

When I heard the news last week while on vacation, the first thing that hit me was this: The courts have a new discovery issue for personal injury lawyers to deal with. That news, as you can guess from the subject heading, is that Apple iPhone users have their movements tracked by GPS so long as the device is on.

And while much of that data may have existed before, and been accessible particularly to the police, Apple will make it much easier to obtain. Why? Well, because there’s an app for that.

These are the basics:

The tracking seems to have begun in June 2010 with the iPhone 4 update to the OS and the data is stored on the phone but is automatically transferred to a computer when the iPhone is synched without the user’s knowledge.

So the info is on your phone, on your computer, and on Apple servers somewhere out there in the digital world.

Think this through for a minute with me, to see how the data can be used for a simple accident case:

It may tell you how long someone was driving before the accident. Important for a 10 minute trip and an intersection collision? Perhaps not. But if it was a truck or bus traveling for 12 hours? Now we have another story. Can it tell you how fast you were going in the 60 seconds before the accident? Many judges might well think that relevant information for a jury.

How long did that witness testify they were at the bar/restaurant before the accident? It better be accurate, because if the phone was on it will rat you out. And those phone are almost always on.

It can also be used for criminal prosecutions. And defense to support an alibi. Matrimonial is a no-brainer for the cheating spouse. It’s like putting a private investigator in your pocket.

iPhone GPS data litigation; coming soon to a courthouse near you. Don’t say you weren’t warned.

Updated: Well, that didn’t last long. Steve Jobs has admitted a mistake (why can’t politicians do that?) and a software update is in the works to make this go away.

Yesterday, New York’s Appellate Division, First Department, reversed a lower court judge in refusing to allow broad discovery regarding Facebook and other social media sites. Discovery of data from social media sites is as hot a subject as can be found among litigants, and this is now the second of New York’s four appellate divisions to weigh in on the subject.  In November 2010, the Fourth Department similarly shot down a Facebook demand in McCann v. Harleysville Insurance.

Yesterday’s decision in Abrams v. Pecile resulted from semi-nude photos of the plaintiff that the defendant possessed, and an allegation of attempted extortion. According to the court, the:

plaintiff alleges that defendant, a former employee of plaintiff’s husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff’s husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.

New York, it seems, is firmly putting the brakes on out-of-control discovery requests. There was no new disclosure standard used, with the court using the time-tested:

“the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … Nor has defendant shown that broad discovery concerning plaintiff’s finances, education, immigration status, and educational background is “material and necessary” (CPLR 3101[a]).

Ace medical blogger Kevin Pho, of Kevin M.D.

Dr. Kevin Pho is probably the medical blogosphere’s leading blogger, and he puts up an interesting commentary entitled Medical Students Should Not Be Liable for Malpractice. Why? Because they are, for the most part, being supervised by others who are completely responsible for what they do.

He writes due to a bill in Arizona on the subject that seeks to confer immunity on medical students for errors of negligence. Dr. Pho supports the bill, writing:

Injured patients do not benefit from suing medical students.  If negligence occurs, a supervising physician will answer the charges, and participate in the malpractice process.

Leave medical students alone, and exempt them from medical malpractice lawsuits.

For the purposes of this post, I am expanding beyond this Arizona bill and also broadening the subject to include residents, who are also supposed to be supervised (albeit to a lesser extent). The principle is the same, particularly for the junior residents; there is someone overseeing what they do.

This is the issue for the lawyers: Why sue these doctors-to-be or young residents if there is a medical practitioner or hospital that is supervising, who will be liable for their conduct?

Personally, I would prefer not to sue residents, and I certainly wouldn’t want to sue a medical student, but attorneys representing patients are sometimes forced to if they are going to fulfill their obligation of “zealous advocacy” to their clients.

I’ll explain how this happens in the real world with of one of my own cases, long since settled, no names needed. Some years back a young resident was putting a catheter into an elderly patient’s jugular vein so the doctors would have easy access. He missed and put it in the carotid artery. A nurse discovered this shortly afterward, the patient was rushed into surgery to repair the artery, but the patient died.

I sued the hospital, but not the resident who did the deed since his name was an unintelligible squiggle on the chart.  Since the hospital was responsible for any treatment he gave, it didn’t really matter from a legal standpoint, right?

Well, not quite. You see, when people are a party to a lawsuit they are often often treated differently than those who are non-party witnesses. And if there are different rules there will be different consequences.

In this case, the resident was produced for deposition as a person with knowledge of the event — produced as an employee, not as a defendant. I learned during the questioning that he put together a PowerPoint presentation of the event for a hospital’s internal conference that wanted to know what about this “adverse outcome.” I asked for the document, and the defense lawyer refused, telling me it was privileged. And she was technically correct under New York’s Education Law §6527(3) that governs such internal quality reviews that are done by hospitals.

But the law has an exception for those that are actually parties to lawsuits. And that exception reads:

The prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a
meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.

We were entitled, therefore, to copies of any statements a person might have made to an internal committee doing reviews of incidents, but only if that person was a defendant;  Otherwise it is privileged because of the public policy of candor in such committees to improve medical care.

Now this was the interesting part. I still had time to add the young resident to the suit, and I could then get the document. Since he was the one that actually made the error, this shouldn’t be any kind of problem from a legal perspective.  So I made an offer to defense counsel. If I sue  him, I told her, I will be entitled to the document. So why not just turn it over and I’ll agree not to sue him?

Sounds reasonable, right? I figured I was moving the case quickly and getting the document my client needed to help establish liability, and which I knew I could get one day. And at the same time the young doctor would be spared the understandable anxiety of having his name on the suit, and the potential of being included in the secretive National Practitioners Data Bank that tracks significant settlements and verdicts against doct0rs, the results of which could follow him when he applies for his next job. This was a pretty clear win-win for both sides.

But the answer from defense counsel a few months later was no. And further, I was told, they would cross-move to have me sanctioned if I moved to amend the suit to add the young resident as a defendant, though I was never really clear on what theory they could possibly make such a motion, unless desperation is a theory.  So I  ignored the threat and moved to add the resident as a party, which I was obligated to do if I was going to represent my client well. And defense counsel cross-moved to have me sanctioned for making threats to add him as a defendant. Yes, my motion was granted and yes the cross-motion was laughed out of court. (My expert legal ethicist wrote that I was a mensch for making the offer.)

But, to directly answer the question of Dr. Pho, there are times when having  a person added as a party to a lawsuit is beneficial because it helps in discovery.

Here are two other ways it might help: If the student/resident moves out of state, and they move often at this point in their careers, the plaintiff still has access to them because, as a party, they are required to participate in the litigation and it makes getting depositions and documents easier. And it also helps at trial, because if they don’t show up to testify they are going to have some serious explaining to do.

And last, if the young doctor is a party, s/he can be asked their opinions. If they are merely fact witnesses, they don’t have to give their opinions. (This is the law in New York; It may differ elsewhere.)

And so, Dr. Pho is right that the students shouldn’t be added as defendants, but only philosophically. I don’t know what the law is in Arizona with respect to the three issues I just raised, but in the bigger picture it is easier to understand why such people do get sued; Because the law treats a party to a lawsuit differently than someone that is merely an employee of a party.