Archive for the ‘Discovery’ Category

Can New Protective Order Law Be Used for Facebook Demands?

Facebook-logoThe New York Law Journal has a short article today on an expansion of New York law regarding protective orders from over-reaching discovery (CPLR 3103(a)). Governor Cuomo signed it yesterday.

While it has long been the law that any person from whom discovery is sought may object to a discovery demand, the new amendment now includes objections regarding others who may merely be mentioned in the discovery being sought.

This can, as I’ll explain in a moment, be used to protect against many aspects of Facebook, social media and email demands.

The rationale for the law, however, didn’t have anything to do with Facebook. This is the simple (and quite logical) reasoning from the memo accompanying the bill:

Not addressed [in the current law] is a person about whom records are being subpoenaed from either a party or another nonparty. By way of example, if an accountant is subpoenaed to produce the records of clients who are not parties to the litigation, it is unclear under the present statute whether the non-party clients would have standing to object to the production of their records.

This is easy to understand if an accountant’s records are sought. Just because there may be a lawsuit regarding one aspect of your accountant’s practice, having nothing to do with you, does that mean that your private records should be disclosable? Shouldn’t you at least have standing to object?

The law was proposed by Chief Administrative Judge A. Gail Prudenti and her Advisory Committee on Civil Practice to fill a procedural gap.

But what if Facebook records are sought? These requests are getting more common as the months go by, and I’ve collected a few New York decisions on the matter.

The scenario in which it would come up is easy to foresee: Joe busts his arm in a car collision (not an accident). He writes about it on Facebook. His friends, who have their privacy settings maxed out, respond. Perhaps one of them jokes in a comment or private message, “You been drinking again?”

Are the comments and messages of the friends discoverable? The law here, of course, is not whether those comments may be admissible at trial, but merely discoverable. Can the defense lawyers go on a fishing expedition through the comments and messages of friends and their lives? These friends clearly have an expectation of privacy, as Facebook has explicitly told them so.

It seems to me that this new law can, will, and should, be used to combat over-reaching Facebook demands. Expect to see decisions on this in a year or two.

How Not To Ask A Question

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.

App Court: You Ain’t Gettin’ Those Facebook Files

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.

Protecting the Client’s HIV, Drug and Mental Health Medical Records

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.


Facebook Says “Privacy Expectations” On Its Site

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.



New Facebook Decision – Novartis Loses Again

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?



New Facebook Discovery Decision: Another Defendant Shot Down

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.

City of New York Once Again Rebuked by Appellate Court; City Answers Stricken

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)


iPhone GPS Data Will Open New Doors in Litigation (Updated)

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.

NY Appellate Court Bars Discovery of Facebook Materials

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]).

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