August 7th, 2013

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.


December 5th, 2012

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.


October 5th, 2012

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.


May 16th, 2012

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.



March 23rd, 2012

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.