The Bodily Injury Plaintiff’s Background - Obtaining and Admitting the Evidence from Inception through Trial CONTINUING LEGAL EDUCATION SEMINAR
The Bodily Injury Plaintiff’s Background - Obtaining and Admitting the Evidence from Inception through Trial
Leon R. Kowalski, Esq., Kowalski & DeVito Jamie V. Tarallo, Esq., Pillinger Miller Tarallo, LLP Mark Wilhelmsson, Terrier Claims Services Jason J. Gudaitis, Terrier Claims Services
CLE Materials - Table of Contents
These materials may be viewed or downloaded at the “CLE Materials” page of DANYs website: http://defenseassociationofnewyork.org/page-865645
Slides re background investigation, etc. ------pages 3 - 14 (Mark Wilhelmsson)
Slides re admissibility considerations ------pages 15 - 23 (Leon R. Kowalski, Esq.)
Slides re social media for surveillance investigation, etc. ------pages 25 - 35 (Jason J. Gudaitis)
Slides re social media discoverability and use ------pages 37 – 61 (Jamie V. Tarallo, Esq.)
Outline with case summaries re social media discoverability and use ------pages 62 – 76 (Jamie V. Tarallo, Esq.)
News alert re social media discoverability and use ------pages 77 – 80 (Jamie V. Tarallo, Esq.)
Additional reference ------pages 82 – 89 (Bradley J. Corsair, Esq.)
Curriculum Vitae: Leon R. Kowalski, Esq. ------pages 91 - 94
Curriculum Vitae: Jamie V. Tarallo, Esq. ------pages 95 - 97
Curriculum Vitae: Mark Wilhelmsson ------pages 98 - 100
Curriculum Vitae: Jason J. Gudaitis ------page 101 IN VESTIGATIO N
• Background Searches
• Video Surveillance
• So cial Media Searches W HEN
• It is never too early
• The sooner the better
• Give the investigator time to work HOW TO USE IT
• Disco very Exchange O bligatio ns
• Motion for Summary Judgment
• Mediatio n
• Trial (Admissibility) BACKGRO UN D SEARCHES
• DMV Searches
• N atio nal Pro file Search
• Litigatio n Searches
• Criminal Reco rd Searches
• ISO Claim Search Casualty System
• So cial Media Searches D MV SEARCHES
• N ame Verificatio n
• Driver’s Histo ry & License Class
• Suspensions
• Co nvictio ns
• Accidents - Securing Certified Po lice Repo rts
• License Surrenders to other States
• Driver’s License Applicatio n retrieval NATIO NAL PRO FILE SEARCH
• Bankruptcies
• Lie ns
• Judgements
• National Address History + Property Records
• Can Unco ver Maiden N ames / Aliases used histo rically
• Criminal Histo ry Indicato rs • Sexual Offenses
• Date of Birth and SSN variations
• Employment / Business Ownership / Professional License(s)
• In and Out-of-State Vehicle Registratio n Histo ry
• Utility / Vo ter Registratio n / Hunting & Fishing Licenses
• Asso ciates / Relatives (So cial Media) LITIGATIO N SEARCHES
• Civil
• Supr eme
• Federal
• * Searches should include E-filed cases.
• * Plaintiff & Defense Counsel file retention times vary.
• * Certified document retrieval times can vary significantly by County and State. CRIMIN AL RECO RD SEARCHES
• N ame and date o f birth specific.
• Searches must be both state-wide and performed through the state.
• Searches should be performed only after DMV, National Profile and Social Media searches are completed.
• * Certified Certificates o f Dispo sitio ns and criminal transcript retrieval times can vary significantly by county and state. ISO CLAIM SEARCH CASUALTY SYSTEM
• Claim Index
• National + U.S Territories
• NICB (National Insurance Crime Bureau) fraud indicators included.
• 90+ % Insurance Carriers
• * Background Search should be performed first with relevant data noted on the subpoena itself.
• * Subpoena is dependent on NOI status.
• * Authorization requests submitted.
• * Updated Litigation Searches etc. performed based on records. D EPO SITIO N
• ALL po ssible name variatio ns, including maiden / middle names.
• Complete address history
• Dat e o f Bir t h and SSN
• N ames o f all family members
• Prior or subsequent Claim and Injury inquiries
• Prio r o r subsequent Litigatio n + Criminal inquiries TIMIN G IS EVERYTHIN G AD MISSIBILITY
• Criminal Reco rds CPLR §4513 – Competency of Person Convicted of a Crime “A person who has been convicted of a crime is a competent witness; but the conviction may be prove d, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to a nswer any relevant question, or by the record. The party cross-examining is not concluded by such person's a nswer”
• Co nvictio n Guilty Plea Misdemeanor or Felony Excludes Traffic Vio latio ns
• Admissio n o n Cro ss Examinatio n
• Certified Copy of the Judgment of Conviction AD MISSIBILITY
• Po lice Repo rts
• Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule
• Admissible as a business record so long as the report is made based upon the o fficer's perso nal o bservatio ns and while carrying o ut po lice duties
• If the person giving the police officer the information was not under a business duty to give the statement to the police officer, such information "may be proved by a business record only if the statement qualifies [under some other] hearsay exception, such as an admission" AD MISSIBILITY • Accident Reports
Where Did the Report Come From?
CPLR §4518 Business Record Exception to Hearsay
• Made in the regular course of any business
• It was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter
• Each participant in the chain producing the record must be acting within the course of regular business conduct AD MISSIBILITY • Accident Reports and Other Certified Records
CPLR §3122a Certificatio n o f Business Records
• Business records produced pursuant to a subpoena duces tecum shall be acco mpanied by a certificatio n from authorized custodian of the record.
• Certification must state that records are accurate and are complete.
• Must state that the record was made by in the regular course of business and that it was the regular course of business to make such records and that the records were made reasonably contemporaneously with the event recorded.
• A party intending to offer business records authenticated by certification subscribed pursuant to this rule at a trial or hearing shall, at least thirty days before the trial or hearing, give notice of such intent and specify the place where such records may be inspected at reasonable times. A party objecting must do so ten days before trial and must state the grounds for the objection. AD MISSIBILITY
• Photographs
• Familiar with the persons, places or scene depicted in the photograph
• Fair and accurate representation of the persons, places or scene depicted in the photograph
• Beware o f pro bative value, misleading o r prejudicial arguments AD MISSIBILITY
• Video Footage
• Fair and accurate representation of the events depicted in the video
• Familiar with the events depicted AD MISSIBILITY • Surveillance o f a Plaintiff • Videographer who took the video - that it correctly reflects what they saw, and that it has not been altered or edited
• CPLR §3101(i) - Full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof. Requires disclosure of all portions of such material, including o ut-takes, rather than only those portions a party intends to use
• Requires disclo sure o f a ny films, photographs, video tapes or audio tapes of a party, regardless of who created the recording or for what purpose
• Any discrepancy between the tape and the videographer's description in a written report of what they saw would be a proper matter for cross-examinatio n
• If yo u o btain it befo re the plaintiff’s depo sitio n, it must be disclo sed befo re the depo sitio n. Once the plaintiff makes a demand fo r the surveillance, it must be pro vided, regardless of whether or not the plaintiff has been deposed AD MISSIBILITY
• Prior/Subsequent Injuries and Accidents
• Certified Medical Reco rds
• Transcripts o f Prio r Depo sitio ns
• Executed vs. Unexecuted
• Pleadings and Bill o f Particulars AD MISSIBILITY
• Texts
• Outgoing texts when sent by a party can be an admission
• Inco ming texts are analyzed separately and individually determining whether it is hearsay and whether there is an exception or not.
CLE materials continue on the next page
OVERVIEW
TODAY’S PURPOSE:
• To inform you of the role that social media plays in a successful surveillance investigation
• Highlight the importance of “live” social media investigation versus using a computer algorithm
• Field questions WHAT DOES A SOCIAL MEDIA INVESTIGATION INCLUDE?
• SOCIAL MEDIA • Facebook • Twitter • Instagram • Dating sites • News compilation resources (publications NOT on Facebook) • Obituaries • And more
• CONNECTIONS ANALYSIS • Linking relationships • Up to 3 degrees of separation WHAT DOES A SOCIAL MEDIA INVESTIGATION INCLUDE?, cont’d
Social Media pushes the investigation beyond motor vehicle, property, Social Security number and other public records:
• Can identify: • possible relatives / associates • aliases • address changes • unlisted land and cell phone numbers
• Dark/Deep Web Investigations • a word… WHAT DOES A SOCIAL MEDIA INVESTIGATION INCLUDE?, cont’d
• Helps to identify subject
• Helps to identify vehicles
• Predicts whereabouts • marathoner, Yankees fan
• Focus investigation on areas of interest • subject is a skydiver
• Allows surveillance to be optimally efficient • Subject likes to sleep late (avoid early start) • Subject is a football fan and will likely be inside during games FILE PREP EXAMPLE #1 FILE PREP EXAMPLE # 2 LIVE DESKTOP INVESTIGATORS ARE CRITICAL
Desktop investigators find links and answers through social media where computer algorithms often fail:
• Links are made to identify a subject’s photo via relatives and other connections through experienced desktop investigators • Photo comparison • Nicknames • Identify profiles of relatives / associates • Thorough review of tagged photos / comments (claimant and relatives)
Here are some examples…. REAL LIFE EXAMPLES
The Racer
• Client received information on the wrong guy • We were provided racing statistics by the client with the same name as the claimant • Actual claimant was a racing enthusiast but we were able to determine there were two separate subjects. • The car provided was not the claimant’s car, had much different interests in vehicle makes • Actual claimant profile had not shown racing activity for 3+ years • Confirmed individual links to areas of residence • Showed dates the other individual participated in races compared to claimant’s activities REAL LIFE EXAMPLES
The Rapper
• Live investigator was able to identify subject’s social media profile where only the subject’s professional rapper name was used
• Investigator was able to successfully utilize a drivers license photo to confirm social media presence
• Further supporting evidence was found through: • Relatives profiles which linked to the subject • Photos from Google Street that matched neighborhood photos the subject posted on social media REAL LIFE EXAMPLES
The Car Rental Connection
• Investigating the occupants of both cars in an MVA • Using real names yielded no connections • Nick names were found for several subjects, one who used their middle name as their first name on social media, another used an unusual nickname • Identified references/tags with nicknames • We found a photo of the renter and a claimant vehicle passenger together dated prior to the accident date
Through manual research, we were able to establish a connection between the two vehicles in the accident THANK YOU FOR YOUR TIME
ANY QUESTIONS?
CLE materials continue on the next page
SOCIAL MEDIA: DISCOVERABILITY AND USE Types of Social Media
– Facebook – Myspace – Twitter – Snapchat – Instagram – Tumblr – Google+ – YouTube – Linkedin Use and Benefits of Social Media
• Negotiating settlements/plea bargains; • Sentencing; • Mediations; • Arbitrations; • Arraignment/bail hearing; • Depositions; and • Trial. Uses and Benefits Cont.
• Lawyers have found that these resources can provide accurate information as to: – potential litigants’ background – history – seriousness of injury – level of disability • The information sought on these social platforms can not only be useful for finding litigants, but also for strengthening a defense as to the extent of personal injuries claimed Researching Social Media • General googling of personal information • Obtain email address to search • Obtain names of family members, significant others and friends to search • Find out nicknames, middle name and other names used (maiden name) • Facebook profile may provide additional information to assist in research, such as education, employment history, and membership in clubs/organizations Ethical Rules to Consider
• Cannot “friend” a party you are not representing • Cannot use third party to “friend” a witness • If parties are already friends, you may ask your client to show/share with you any relevant information that has been posted by opposing party CPLR 3101
• There shall be full disclosure of all non-privileged matter which is material and necessary to the defense or prosecution of an action. • To this end, trial courts have broad discretion in the supervision of discovery, and in determining what is “material and necessary” (see: Allen v. Crowell–Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968]; Romano v. Steelcase Inc.
• “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action (see: Hoenig v. Westphal, supra ). • Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury (see: Walker v. City of New York, 205 A.D.2d 755, 614 N.Y.S.2d 31 [2 Dept. 1994] ) – Romano v. Steelcase Inc., 30 Misc. 3d 426, 428, 907 N.Y.S.2d 650, 652 (Sup. Ct. 2010) Initial Demands
• What to include: • Demand for relevant site content (not unlimited) • Authorization for Stored Communications Act • Demand for data from Facebook’s “Download Your Information” function (and any similar function from other social media sites) • Demand for party to provide username and address of all social media accounts • Demand for party to provide account data for the period of (date) through the present Spoliation
• Serve a Notice to Preserve • Request a “spoliation of evidence” jury charge if party deletes social media information during litigation • What can you tell your clients? – Cannot tell them to delete their social media account – Can tell them to make sure to have privacy settings up and NOT to post anything In Camera Inspections
• You should always ask for an in camera inspection as an alternative to granting unfettered access to Π’s social media websites • In Camera inspections should be used sparingly as it is a waste of court time and resources unless the party seeking the social media info can show there is a factual predicate for inspecting this material. Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592 (Sup. Ct. 2013). Social Media Provider Policies
• If you attempt to get social media information with just a subpoena, the social media provider will likely (and usually successfully) move to quash the subpoena under the Stored Communications Act. • For Facebook, any subpoenas outside of California have to be “domesticated” under California State Law. – You can hire local California firm to domesticate and serve your subpoena under court order Obtaining Social Media from Provider
• If a Government Agency – You need a warrant • If an Individual/Private Attorney – Need court order and/or subpoena AND an authorization signed by the user – If a party refuses to provide authorization, make a motion to compel authorization, but must show a factual predicate to win this motion – Opposing party will move for a protective order Obtaining Social Media from Provider
– Expedited Service • Many social media providers offer expedited service if it is a matter of “imminent bodily harm” – You must email the provider with “imminent bodily harm” in the subject heading of the email • Without “immanent bodily harm” you may wait months for a response – Refusal • Social media providers still reserve the right to deny access • Federal laws allow them right to refuse in most circumstances – Electronic Communications Privacy Act – Stored Communications Act (18 U.S.C. § 2701) – Ways Around this • Publicly posted material is free and useable • You can use this material to establish a factual predicate to obtain private information by court order Obtaining Social Media from Provider
• Standard for Production – Two Pronged Analysis – In both the criminal and civil cases, a two-pronged analysis is conducted before trial courts compel the production of the contents of social media accounts on the Internet, first requiring a determination by the court as to whether the content contained on/in the account is material and necessary, and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights. New Standard for discoverability in civil cases • Recent decisions have held that when a person puts their mental or physical health in question, social media platforms can be very useful and determinative in the outcome of a case. • Counsel can use law mechanisms such as notices to admit, motions to compel, and discovery demands to extract such information that is necessary and relevant to the cause of action • Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury (see: Walker v. City of New York, 205 A.D.2d 755, 614 N.Y.S.2d 31 [2 Dept. 1994] )”. Forman V. Henkin
• “New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists”. • The Court went on to say that, “even private materials may be subject to discovery if they are relevant……when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records—including the physician-patient privilege—are waived”. • For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information. • Forman v. Henkin, 30 N.Y.3d 656, 666, 93 N.E.3d 882, 890 (2018). Use at Depositions
• With respect to the use and questioning of social media at depositions, courts have held that parties are required to answer all relevant questions and lawyers should not be allowed to object when the information sought is relevant to the claim.
• In Lieblich v. Saint Peter's Hosp. of City of Albany, 112 A.D.3d 1202, 1204, 977 N.Y.S.2d 780, 783 (2013) the court held that “[a]ll questions posed at depositions should be fully answered unless they invade a recognized privilege or are palpably irrelevant”.
• New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. Forman v. Henkin, 30 N.Y.3d 656, 661, 93 N.E.3d 882, 887 (2018). Objections
• While conducting depositions, it is highly improper for a lawyer to object to questioning that does not meet one of the enumerated exceptions which includes: – (a) to preserve a privilege or right of confidentiality; – (b) to enforce a limitation set forth in an order of a court; or – (c) when the question is plainly improper and would, if answered, cause significant prejudice to any person. – N.Y. Comp. Codes R. & Regs. tit. 22, § 221.2. CPLR 3124
• When lawyers experience improper or numerous objections by opposing counsel, there are many ways in which they can proceed to remedy the noncompliance such as: – calling the court – notices to admit – motion to compel – order to show cause, etc. • The party conducting the deposition will continue questioning and gather up all of the questions the deponent refused to answer and can make them all the subject of a single motion for an order to compel disclosure under CPLR 3124. CPLR 3126
• The attorney may also seek sanction under CPLR 3126 for failures to disclose or respond to questioning. • CPLR 3126 states in pertinent part: “If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: – 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or – 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or – 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.” • N.Y. C.P.L.R. 3126 (McKinney) Sanctions
• “Regardless of whether a court has the power to impose the sanctions listed in CPLR 3126 on a motion under CPLR 3124, it certainly has the power to impose sanctions under Part 130 if it finds that the party resisting disclosure has engaged in frivolous conduct. See 22 NYCRR § 130-1.1(c) (defining frivolous conduct)”. N.Y. C.P.L.R. 3124 (McKinney). Tips
• Do not make a discovery demand for social media information at the onset of the case • If you have not conducted a social media search of Plaintiff prior to their deposition, Do not ask at plaintiff’s deposition about social media as it will remind plaintiff’s attorney, who will then instruct their client to privatize and stop posting • If you already have positive social media evidence before the deposition, and plaintiff blatantly lies at deposition, contradicting same, mark as exhibit and confront them with it. • During EBT of plaintiff ask for all associated persons (family, friends, significant others, roommates, etc.) full names, ages and location; Takeaway
• In conclusion, Social Media platforms should be preserved as if the Plaintiff was a business preserving their electronic data. • Social Media can be highly relevant and discoverable when there is a showing it may impact the outcome of the case and when it is likely to lead to relevant and non-privileged information. • At depositions, it is likewise improper to continuously object to questions regarding social media unless there is a strong argument that the objection falls under one of the enumerated exceptions. • Even when a pretrial deposition question is perceived as misleading, the question must and should be answered subject to objection, unless it crosses the threshold for interposing a proper instruction not to answer. Questions?
SOCIAL MEDIA: DISCOVERABILITY AND USE
2020
Jamie V. Tarallo, Esq [email protected]
1 TYPES OF SOCIAL MEDIA
(1) Various Types of Social Media a. Facebook b. My Space c. Linked In d. Snap Chat e. Instagram f. Tumblr g. Youtube h. Twitter i. Google+ j. Pinterest
INITIAL CONTACT AND RESEARCH
(1) Know what is out there on the your client AND the opposing party a. The other side will be doing this, so it is essential that you do it as well b. Simple research can lead you to public profiles i. Go right to Google and try typing in the party’s name! This can lead to all publically available social media profiles. c. Anything you find on their Social Media Accounts that may be helpful should be documented and memorialized. i. Print out anything you find on their Social Media Account ii. Take screen shots of the helpful material to show the date and time of when this material was originally found in case it is deleted later or revised (2) Research the Plaintiff a. Know what injuries Π is claiming i. Does Π mention these injuries or the incident itself on his/her profile? ii. Do any social media posts contradict Π’s complaints? b. Has Π posted any videos? i. What do these videos depict? ii. When were they posted? iii. Do any videos contradict Π’s complaints? c. Has Π posted any pictures? i. Do these pictures show the crime/accident/incident scene? ii. Do any pictures contradict Π’s complaints? (3) Research the Defendant a. Pictures i. Do these pictures show the crime/accident/incident scene? b. Admissions i. Do any posts or messages show any admissions of guilt?
2 (4) Ethical Rules to Consider a. You CAN: i. Counsel client on the legal implications of client’s social media content 1. This is a part of a lawyers diligent and competent representation of the client ii. Tell client to put their privacy settings up to the highest setting on their social media sites iii. Tell clients that a party is only entitled to public information iv. Tell clients to be on cautious of random friend requests 1. While it is unethical for the opposing attorney to friend the opposing party, the client should be aware of the possibility v. Be cautious if your client is friends with the opposing party on social media because they can see the private material vi. Advise client about what he/she should and should not post on social media 1. NOTE: A lawyer cannot participate in the creation of false evidence or staged photographs/videos
b. You CANNOT: i. Advise the client to delete their account or specific pictures or posts as this may be spoliation 1. This is especially true if you have or are about to commence an action or you have received a preservation letter 2. Once a party reasonably anticipates litigation, it must, at minimum, institute appropriate litigation hold to prevent routine destruction of electronic data. VOOM HD Holdings LLC v. EchoStar Sattelite LLC, 93 A.D.3d 33 (1st Dept, 2012); Lester v. Allied Concrete (Virginia) (Attorney advised client to “clean up” FB account. Π got verdict but Π and Π’s attorney were ordered to pay more than $500,000 in sanctions, attorney was fired and now faces sanctions from State Bar).
3 DISCOVERABILITY OF SOCIAL MEDIA INFORMATION
(1) Discovery Standard - CPLR § 3101(a) a. Discoverability of social media content fits within NY’s traditional discovery standards b. Any information is subject to discovery so long as it is “material and necessary in the prosecution or defense of an action.” c. Material and Necessary” is still the standard, only the factual predicate has changed d. Romano v. Steelcase Inc. i. “Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action (see: Hoenig v. Westphal, supra ). ii. Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury (see: Walker v. City of New York, 205 A.D.2d 755, 614 N.Y.S.2d 31 [2 Dept. 1994] ) 1. Romano v. Steelcase Inc., 30 Misc. 3d 426, 428, 907 N.Y.S.2d 650, 652 (Sup. Ct. 2010) (2) Initial Demands a. Your initial demands must be tailored to your case and reasonably calculated to obtain discoverable information b. What Should be Included in Your Request for Production i. Demand for relevant site content (not unlimited) ii. Authorization for Stored Communications Act iii. Demand for data from Facebook’s “Download Your Information” function (and any similar function from other social media sites) iv. Demand for party to provide username and address of all social media accounts v. Demand for party to provide account data for the period of (date) through the present 1. Must be tailored to the issues, related injuries and claims to avoid valid objection 2. You should define your account data desired: profiles, posts, messages (including forwards and replies), tweets, retweets, wall posts, comments, status updates, blog entries, comments, videos, pictures), and tagging by third parties vi. Demand for party to provide username and password for each social media account, or alternatively, provide a copy of all non-privileged content/data shared on the account(s) in the last (number) years including, but not limited to, all updates, changes or modifications to the profile.
4 (3) Spoliation a. Serve a Notice to Preserve!! b. Request a “spoliation of evidence” jury charge if party deletes social media information during litigation (4) In Camera Inspections a. You should always ask for an in camera inspection as an alternative to granting unfettered access to Π’s social media websites b. In Camera inspections should be used sparingly as it is a waste of court time and resources unless the party seeking the social media info can show there is a factual predicate for inspecting this material. Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592 (Sup. Ct. 2013). c. An in camera review of social media account materials for relevancy may not be ordered, as such a function can be honestly and accurately performed by the account holder's counsel. Melissa "G" v. North Babylon Union Free School Dist., 48 Misc. 3d 389, 6 N.Y.S.3d 445, 316 Ed. Law Rep. 1001 (Sup 2015). d. See also, where “the iPhone and a record of the device's contents shall be delivered to the court for an in camera review to determine what if any information contained on the iPhone is responsive to plaintiff's discovery request. In camera review will ensure that only relevant, non-privileged information will be disclosed.” AllianceBernstein L.P. v. Atha, 100 A.D.3d 499, 500, 954 N.Y.S.2d 44, 46 (2012) (5) What is Required to Preserve and Obtain Information a. Criminal Case i. If a Government Agency 1. You need a warrant ii. If an individual/Private Attorney 1. Need court order and/or subpoena AND an authorization signed by the user b. Civil Case i. You need an Authorization signed by the user and a Court Ordered Subpoena 1. ∆s will likely have to make a motion for this info, but must show a factual predicate to win this motion 2. Π’s will move for a protective order ii. If you attempt to get social media info with just a subpoena, the social media provider will likely (and usually successfully) move to quash the subpoena under the Stored Communications Act. 1. If a party refuses to provide authorization, make a motion to compel authorization iii. There will also be a processing fee
5 iv. NOTE: For Facebook, any subpoenas outside of California have to be “domesticated” under California State Law. 1. You can hire local California firm to domesticate and serve your subpoena under court order c. Expedited Service i. Many social media providers offer expedited service if it is a matter of “imminent bodily harm” 1. You must email the provider with “imminent bodily harm” in the subject heading of the email ii. Without “immanent bodily harm” you may wait months for a response d. Refusal i. Social media providers still reserve the right to deny access ii. Federal laws allow them right to refuse in most circumstances 1. Electronic Communications Privacy Act 2. Stored Communications Act (18 U.S.C. § 2701) iii. See the sites “Terms of Service” for more guidance e. Ways Around this i. Publicly posted material is free and useable ii. You can use this material to establish a factual predicate to obtain private information by court order iii. Seek in camera inspection iv. Seek court order that discloses username/password permitting opposing party to access site (6) Standard for Production – Two Pronged Analysis a. In both the criminal and civil cases, a two-pronged analysis is conducted before trial courts compel the production of the contents of social media accounts on the Internet, first requiring a determination by the court as to whether the content contained on/in the account is material and necessary, and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights. Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592 (Sup. Ct. 2013) b. [This as a conflicting decision that the court never really grappled with in its limited Forman case, but we will likely see change pretty quickly!] (7) New Standard for Discoverability in Civil Cases! a. Under the old standard, to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's social media account. McCann v. Harleysville Ins. Co. Of New York, 78 A.D.3d 1524 (4th Dep’t, 2010). However, the standard has changed! b. NEW STANDARD –
6 i. Recent decisions have held that when a person puts their mental or physical health in question, social media platforms can be very useful and determinative in the outcome of a case. ii. Counsel can use law mechanisms such as notices to admit, motions to compel, and discovery demands to extract such information that is necessary and relevant to the cause of action iii. Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury (see: Walker v. City of New York, 205 A.D.2d 755, 614 N.Y.S.2d 31 [2 Dept. 1994] )”. c. Forman v. Henkin, 30 N.Y.3d 656 (Ct. App. 2018). i. SCOPE OF DISCLOSURE Starting a personal-injury action does not render Π’s entire social networking website account automatically discoverable; discovery requests for social networking account information must be evaluated on a case-by-case basis with regard for the strong policy supporting open disclosure. The scope of disclosure of social media information should be appropriately tailored and reasonably calculated to yield relevant information. 1. “New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists”. ii. PRIVACY SETTINGS Π’s privacy settings do not govern scope of disclosure of materials posted on a social networking website; but can be discoverable to the extent it contradicts or conflicts with Π’s alleged restrictions, disabilities, and losses, and other claims. 1. The Court went on to say that, “even private materials may be subject to discovery if they are relevant……when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records— including the physician-patient privilege—are waived”. iii. STANDARD USED BY THE COURT 1. Court must first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the social networking website account, and 2. Balance the potential utility of the information sought against any specific privacy or other concerns raised by the account holder,
7 issuing a discovery order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials. iv. SCOPE OF THE COURT’S ORDER The Court of Appeals does not give unlimited access to Π’s social media but a discovery order to disclose social media account information may be limited as to only cover relevant time periods and subject matter. (Vasquez-Santos v. Mathew, 168 A.D.3d 587 (1st Dep't 2019). (8) Depositions a. During depositions, all witnesses should be asked: i. Whether they have or have had social media accounts ii. Whether they have posted anything about the case, their injuries, or any of the claims made iii. Whether anyone else has access to their accounts (for authentication purposes) iv. Because some people use pseudonyms on their profiles, witnesses should be asked the user name on each of the accounts they have. v. They should also be questioned as to whether they have deactivated any social media accounts as this must be disclosed as well 1. Deactivated or deleted material is discoverable if you can show that there is some factual predicate to this search b. Some courts allow party’s to object to even asking for party’s screen name and passwords on social media without a factual predicate. Caban v. Plaza Construction, Index No. 15557/2007 (Sup Ct Queens, Sept 24, 2012); Heins v. Vanbourgondien, Index No 3967/2011 (Sup Ct Suffolk County, Sept 25, 2012). c. Objections i. While conducting depositions, it is highly improper for a lawyer to object to questioning that does not meet one of the enumerated exceptions which includes: 1. (a) to preserve a privilege or right of confidentiality; 2. (b) to enforce a limitation set forth in an order of a court; or 3. (c) when the question is plainly improper and would, if answered, cause significant prejudice to any person. 4. N.Y. Comp. Codes R. & Regs. tit. 22, § 221.2. d. CPLR 3124 i. When lawyers experience improper or numerous objections by opposing counsel, there are many ways in which they can proceed to remedy the noncompliance such as: 1. calling the court 2. notices to admit 3. motion to compel
8 4. order to show cause, etc. ii. The party conducting the deposition will continue questioning and gather up all of the questions the deponent refused to answer and can make them all the subject of a single motion for an order to compel disclosure under CPLR 3124. e. CPLR 3126 i. The attorney may also seek sanction under CPLR 3126 for failures to disclose or respond to questioning. CPLR 3126 states in pertinent part: “If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them: 1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or 2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or 3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.” f. Sanctions i. “Regardless of whether a court has the power to impose the sanctions listed in CPLR 3126 on a motion under CPLR 3124, it certainly has the power to impose sanctions under Part 130 if it finds that the party resisting disclosure has engaged in frivolous conduct. See 22 NYCRR § 130-1.1(c) (defining frivolous conduct)”. N.Y. C.P.L.R. 3124 (McKinney).
(9) Tips for Defense Counsel a. Do not make a discovery demand for social media information at the onset of the case- it puts the plaintiff’s attorney on notice and he may advise his client to stop posting and change social media profiles to private b. Do not ask at plaintiff’s deposition about social media generally, again it is best not to remind plaintiff’s attorney, who will then instruct their client to privatize and stop posting.
9 i. Plus you want the plaintiff to testify to disabilities and limitations that are contradictory to their social media, which will open the door to discoverability. Example- testimony that cannot sit for long periods of time; find vacation photos requiring long flights on their social media. Now entitled to all private portions of social media and passport. 1. “As for defendants' request for copies of all of plaintiff's passports held after the accident, we find that such demand was reasonable and relevant to plaintiff's claim that her injuries have restricted her from traveling long distances (see CPLR 3101; see generally Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ).“ Doyle v. Temco Serv. Indus., Inc., 172 A.D.3d 554, 554–55, 98 N.Y.S.3d 746, (Mem)–747 (N.Y. App. Div. 2019) ii. Exception- If you already have positive social media evidence before the deposition, and plaintiff blatantly lies at deposition, contradicting same, mark as exhibit and confront them with it. Ask them to verify it is their account and/or them pictured. Then you have established another basis to obtain access to their entire social media account. c. If plaintiff is an aspiring musician, actor, model, etc. do a general Google search and typically you will find them on an online platform promoting themselves, including recruiting agency platforms that list their resume; band websites/schedules; IMBD, etc. d. Always do a general Google search along with researching individual social media sites, as you never know what will come up. Example, newspaper articles, 5k race results, business advertisements, etc. e. During EBT of plaintiff ask for all associated persons (family, friends, significant others, roommates, etc.) full names, ages and location; because even if plaintiff privatized their social media, their associated persons may still have posted photographs of them or tagged them. i. Under Vasquez-Santos v. Mathew, 168 A.D.3d 587, 92 N.Y.S.3d 243 (1st Dep't 2019) (An appeal from Supreme Court, New York County, Adam Silvera, J.) – “even where the photograph or video was taken by someone other than the account holder or the account holder did not post the photograph or video but was tagged on another person's posting such that the account holder had access to the photograph or video” f. Seek/review intake sheet or patient questionnaire from all medical providers i. Typically contains email address ii. May reveal nickname, username or social media handle to assist in social media research 1. Also ask about nicknames, stage names, maiden name, or other aliases at deposition
10 2. Renaissance Equity Holdings LLC v. Webber, 61 Misc. 3d 298, 82 N.Y.S.3d 810 (N.Y. City Civ. Ct. 2018). (Court Ordered that respondent produce all online posts whether in her legal name or any other aliases to social media) iii. Typically contains emergency contact name (of family member, spouse, roommate, etc.) 1. Utilize that name to research that person’s social media for tags and photographs of plaintiff
11 DISCOVERABILITY OF SOCIAL MEDIA INFORMATION – RECENT CASE LAW
• Forman v. Henkin, 30 N.Y.3d 656, 70 N.Y.S.3d 157, 93 N.E.3d 882 (2018) o SCOPEDiscovery and inspection of information contained on a party's social media accounts includes photographs or videos, and data revealing the timing and number of characters in post-accident messages. o Exempted from disclosure were any photographs of plaintiff depicting nudity or romantic encounters o But see, Breest v. Haggis, 64 Misc. 3d 1211(A) (N.Y. Sup. Ct. 2019) (Supreme Court, New York County, Robert R. Reed, J.) wherein “plaintiff, in her complaint, has stated that she has been unable to have any intimate relationship with a man after the alleged assault. Plaintiff's social media accounts and the information that is stored there, in this court's view, may reasonably be expected to contain relevant information as to plaintiff's damages allegations. The discovery sought is targeted and appropriately tailored and may yield evidence relevant to plaintiff's assertion of her injured relationships with men—and, as such, is discoverable. “ • Vasquez-Santos v. Mathew, 168 A.D.3d 587, 92 N.Y.S.3d 243 (1st Dep't 2019) (1st Dep't 2019) (An appeal from Supreme Court, New York County, Adam Silvera, J.) (where plaintiff, a semiprofessional basketball player, claimed he was no longer able to play basketball, only items posted to plaintiff's social media accounts post-accident discussing basketball or depicting plaintiff engaging in basketball or other similar physical activities would be subject to disclosure). o SCOPE discovery order to disclose social media account information may be limited as to only cover relevant time periods and subject matter. Discovery and inspection of information contained on a party's social media accounts includes an account holder's postings, photographs, or videos even where the photograph or video was taken by someone other than the account holder or the account holder did not post the photograph or video but was tagged on another person's posting such that the account holder had access to the photograph or video o OTHER MEANS A party seeking disclosure of relevant materials from a Π's social media accounts may seek to compel access by a third-party data mining company to the plaintiff's social media accounts, e-mail accounts and devices to obtain photographs and other evidence of the plaintiff engaging in physical activities that contradicts or conflicts with the plaintiff's alleged restrictions, disabilities, and losses, or other claims. • Melissa "G" v. North Babylon Union Free School Dist., 48 Misc. 3d 389, 6 N.Y.S.3d 445, 316 Ed. Law Rep. 1001 (Sup 2015) o SCOPE Discovery and inspection of information contained on a party's social media accounts includes an account holder's postings, comments posted by others to the account holder's account, photographs, or videos even where the photograph or video was taken by someone other than the account holder or the account holder did not post the photograph or video but was tagged on another person's posting such that the account holder had access to the photograph or video. • Doe v. Bronx Preparatory Charter Sch., 160 A.D.3d 591, 76 N.Y.S.3d 126, 127–28 (N.Y. App. Div. 2018) (An appeal from Decision of Supreme Court, Bronx County, Wilma Guzman, J.)
12 o SCOPE Where defendant’s demands requested social media accounts for 5 years prior to accident, the Court deemed overbroad and not reasonably tailored to obtain discovery relevant to the issues in the case. The Court found that access to the plaintiff’s social media accounts for 2 months before the date of attack was sufficient. • Vivona v. Bridgeview Assoc., LLC, No. 03086112012, 2019 WL 2404996, at *2 (N.Y. Sup. Ct. Apr. 04, 2019) (Supreme Court, Bronx County, Laura G. Douglas, J.) o Plaintiff testified that he sustained such hits at least a couple of times while playing hockey. Plaintiff’s practice of posting such photographs on Facebook, coupled with his admission that he may have sustained concussion(s) previously, satisfy defendant’s burden of showing that plaintiff's Facebook account is reasonably likely to reveal relevant evidence, limited to photographs and other content referencing plaintiff’s engagement in athletic activities. • Caserta v. Triborough Bridge and Tunnel Authority, No. 157983/2015, 2019 WL 3291847, at *1 (N.Y. Sup. Ct. July 18, 2019) o Plaintiff claims to suffer from a “buckling right leg; swelling; tenderness; muscle strain; morning stiffness; and loss of sleep”, and at his deposition, he acknowledged having posting videos and photographs of him attending concerts and playing piano and other instruments. Court held that the subpoenas must be limited to those items which reflect plaintiff attending concerts or playing musical instruments, or engaging in other similar physical activities since the alleged date of the accident. • Pichardo v. New York City Transit Authority, No. 303212/2016, 2019 WL 1979817, at *2 (N.Y. Sup. Ct. Mar. 11, 2019) (Supreme Court, Bronx County, Mitchell J. Danziger, J.) o “[T]he Court finds that defendants have made a sufficient predicate showing to warrant the disclosure and examination of plaintiff's Facebook profile. Plaintiff fails to rebut said showing. Defendants are also entitled to a further EBT of plaintiff to inquire as to the relevant Facebook postings.” o Court ordered that “plaintiff shall provide defendants with a properly executed consent and authorization, as may be required by the operators of Facebook, permitting defendants to gain access to plaintiffs Facebook private and public account, including any records previously deleted or archived by plaintiff or by Facebook operators.” But limits the authorization to say “ shall be limited to postings and records made or created after the date of the underlying motor vehicle accident; limited to records created or posted by plaintiff relating to any operation of a motorcycle (as plaintiff testified he can no longer ride motorcycles). Further, the Court found that plaintiff must appear for the further EBT based on information obtained from these authorizations. • Renaissance Equity Holdings LLC v. Webber, 61 Misc. 3d 298, 82 N.Y.S.3d 810 (N.Y. City Civ. Ct. 2018). o A licensee holdover proceeding concerning rent-stabilized apartment, deceased tenant's alleged daughter, who had been a cast member on a reality television show (Bad Girls Club), moved for a protective order limiting landlord's discovery demands, and landowner cross-moved to compel disclosure. o Like the personal injury plaintiff in Forman who was asked to disclose the “entirety” of her Facebook profile, directing that respondent on her succession
13 defense produce “all” social media posts is tantamount to revealing “every transaction, communication, and photograph that respondent shared with any person on any topic” during a two-year period. o It was ordered that respondent produce all online posts whether in her legal name or any other aliases to social media including but not limited to Instagram, Twitter, YouTube, and Facebook under the following conditions: . (a) if the post contains a location and date, then respondent shall redact all content, including photographs and third-party statements, except for the location and date stated on the post; . (b) if the post contains any comment or statement made by respondent in which she states a location, then respondent shall redact only the photograph contained within the post; and . (c) if the post contains a comment or statement made by respondent which contains the word “home,” “house,” “apartment” or any other synonym of the word “residence,” then the entire content of the post shall be produced with no redaction. o “Although palpably improper demands may be struck as a whole, the better course in this instance is to craft an order narrowly tailored to the issue of respondent's primary residence during the relevant period.” • Herzog v. Sacko Delivery & Trucking, 63 Misc. 3d 1228(A) (N.Y. Sup. Ct. 2019) (Supreme Court, Bronx County, John R. Higgitt, J.) o The Sacko defendants' request copies of written communications from the injured plaintiff to others in which she referred to or described her post-accident complaints, injuries or limitations, and written post-accident communications in which the injured plaintiff expressed reservations about her ability to carry out any professional activities due to health-related problems. o The Court held that “This request is reasonably calculated to yield information that is relevant to the action. The request is focused on written statements or other written representations that the injured plaintiff made to others regarding her post-accident condition and the effects (if any) her condition had on her ability to engage in professional activities. Such statements and representations are relevant and material on the issue of the injured plaintiff's damages (both economic and non-economic), which the injured plaintiff maintains are extensive and permanent“ o Tailoring demands-“Additionally, the Sacko defendants' request was appropriately tailored under the circumstances, seeking only post-accident statements and representations that bear on a fundamental issue in the case: the extent of the injured plaintiff's damages. Also, the Sacko defendants identified particular forms of written communications that are covered by the request (e.g., letters, text messages, emails, Facebook Messenger messages), and individuals to whom the injured plaintiff may have sent such communications... Because this request is reasonably calculated to yield relevant information and appropriately tailored under the circumstances, the request does not represent a mere ‘fishing expedition.‘” • Doyle v. Temco Serv. Indus., Inc., 172 A.D.3d 554, 554–55, 98 N.Y.S.3d 746, (Mem)–747 (N.Y. App. Div. 2019) (An appeal from Supreme Court, Bronx County, Wilma Guzman, J.)
14 o “[P]laintiff alleges that injuries she sustained as the result of a slip and fall at her place of work have caused her to suffer, among other things, a loss of enjoyment of life. o “[Defendants limit their demand to seek ‘only plaintiff's post-accident social media records regarding social and recreational activities that she claims have been limited by her accident‘. Accordingly, the motion to compel should be granted to that extent, which is consistent with the principles set forth in Forman. To the extent plaintiff's social media accounts contain ‘sensitive or embarrassing materials of marginal relevance,’ plaintiff can seek a protective order (Forman, 30 N.Y.3d at 665, 70 N.Y.S.3d 157, 93 N.E.3d 882).“ • Smith v. Brown, 2018 NY Slip Op 28299 Decided on September 27, 2018 Supreme Court, Bronx County Higgitt, J. o Personal injury suit arising from a motor vehicle accident. o Defendant served a notice to admit “on the following matters: (1) whether plaintiff owns and maintains an Instagram account with a specific "handle"; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs — obtained from the Instagram account — and whether those photographs were taken after the accident; and (4) whether plaintiff was depicted in a specified video — obtained from the Instagram account — and whether that video was taken after the accident.” o The social media photographs “depict a young woman engaged in different activities, such as riding in a car, climbing a rock, and walking on a boardwalk.“ Many which were selfies. o Plaintiff sought a protective order. o Decision stated that “Here, defendant Pasquale sought admissions from plaintiff as to uncontroversial, "clear-cut matters of fact" that are within plaintiff's knowledge (see Blair, 116 AD2d at 206). Plaintiff either owns and maintains an Instagram account with a specified handle or she does not, and either that handle was changed from a public to private account setting after a specific date or it was not. Moreover, with respect to the requested admissions relating to the photographs — that were obtained from plaintiff's Instagram account — plaintiff can state whether she is the one depicted in the photographs — most of which appear to be "selfies" — and whether the photographs were taken after the accident. The notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, that the matters on which defendant Pasquale seeks admissions could be explored at a deposition does not take them out of the ambit of the notice to admit. At bottom, the notice sought admissions of the truth of clear-cut matters of fact that defendant Pasquale reasonably believed there could be no substantial dispute at trial and were within the knowledge of plaintiff (see CPLR 3123[a]).”
15 August 2018
PMT NEWS A Publication of Pillinger Miller Tarallo LLP
NEWS ALERT:
SOCIAL MEDIA: DISCOVERABILITY AND USE AT DEPOSITIONS AND TRIALS
Social media such as Twitter, Facebook, and relevant to the cause of action. Romano Myspace and LinkedIn have become major v. Steelcase Inc., 30 Misc. 3d 426, 428, 907 resources in the legal world. Lawyers have N.Y.S.2d 650, 652 (Sup. Ct. 2010) made found that these resources can provide clear that, “Plaintiffs who place their accurate information as to potential litigants’ physical condition in controversy, may not background, history, seriousness of injury or shield from disclosure material which is level of disability. The law around the necessary to the defense of the action discoverability and use of these social media (see: Hoenig v. Westphal, supra ). platforms is recent and relevant as the world Accordingly, in an action seeking damages is continuously shifting to fast pace social for personal injuries, discovery is generally networking. The information sought on permitted with respect to materials that may these social platforms can not only be useful be relevant both to the issue of damages and for finding litigants, but also for the extent of a plaintiff's injury (see: Walker strengthening a defense as to the extent of v. City of New York, 205 A.D.2d 755, 614 personal injuries claimed. N.Y.S.2d 31 [2 Dept. 1994] )”. The court went on to say that, “If the information It is no longer the norm that only major sought is sufficiently related to the issues in companies have to preserve electronic data litigation so as to make the effort to obtain it for litigation. Plaintiffs in personal injury in preparation for trial reasonable, then actions now also have to preserve social discovery should be permitted (see: Allen at media platforms as the information 406–407, 288 N.Y.S.2d 449, 452, 235 contained therein can be highly relevant and N.E.2d 430; In re Beryl, 118 A.D.2d 705, useful for the defense of a case. Use of E- 499 N.Y.S.2d 980 [2 Dept. 1986] )”. discovery is broadening as society becomes more immersed in social media and the Forman v. Henkin held that “New York online world. discovery rules do not condition a party's receipt of disclosure on a showing that the Recent decisions have held that when a items the party seeks actually exist; rather, person puts their mental or physical health the request need only be appropriately in question, social media platforms can be tailored and reasonably calculated to yield very useful and determinative in the relevant information. Indeed, as the name outcome of a case. Counsel can use law suggests, the purpose of discovery is to mechanisms such as notices to admit, determine if material relevant to a claim or motions to compel, and discovery demands defense exists”. The Court went on to say to extract such information that is necessary that, “even private materials may be subject August 2018 to discovery if they are relevant……when a end, trial courts have broad discretion in the party commences an action, affirmatively supervision of discovery, and in determining placing a mental or physical condition in what is “material and necessary” (see: Allen issue, certain privacy interests relating to v. Crowell–Collier Pub. Co., 21 N.Y.2d 403, relevant medical records—including the 288 N.Y.S.2d 449, 235 N.E.2d 430 physician-patient privilege—are waived”. [1968]; Andon v. 302–304 Mott Street For purposes of disclosure, the threshold Assocs., 94 N.Y.2d 740, 709 N.Y.S.2d 873, inquiry is not whether the materials sought 731 N.E.2d 589 [2000]; Cabellero v. City of are private but whether they are reasonably New York, 48 A.D.3d 727, 853 N.Y.S.2d calculated to contain relevant information. 165 (2 Dept. 2008). Within the context of Forman v. Henkin, 30 N.Y.3d 656, 666, 93 discovery, “necessary” has been interpreted N.E.3d 882, 890 (2018). as meaning “needful and not indispensable” (see: Allen at 407, 288 N.Y.S.2d 449, 453, In Okon v. Town of Wappinger, No. 235 N.E.2d 430). The “material and 512492015, 2017 WL 9249181, at *2 (N.Y. necessary” standard is to be interpreted Sup. Ct. 2017) the court states that, “CPLR liberally requiring disclosure of “any facts § 3123[a] related to “Admissions as to bearing on the controversy which will assist matters of fact, papers, documents and preparation for trial by sharpening the issues photographs” states in pertinent part that: and reducing delay and prolixity. The test is ““…a party may serve upon any other party one of usefulness and reason” (see: Allen, a written request for admission by the latter supra; Andon, supra; Hoenig v. of the genuineness of any papers or Westphal, 52 N.Y.2d 605, 439 N.Y.S.2d documents, or the correctness or fairness of 831, 422 N.E.2d 491 [1981] (pre-trial representation of any photographs, described discovery is to be encouraged, limited only in and served with the request, or of the truth by the test of materiality of “usefulness and of any matters of fact set forth in the request, reason”)).”Romano v. Steelcase Inc., 30 as to which the party requesting the Misc. 3d 426, 427, 907 N.Y.S.2d 650, 652 admission reasonably believes there can be (Sup. Ct. 2010). Courts have found that if no substantial dispute at the trial and which the information sought is relevant to the are within the knowledge of such other party issues in the litigation, then discovery or can be ascertained by him upon should be permitted. reasonable inquiry” (id.).”” The court went on to say that, “A Notice to Admit is a While the discoverability of social media proper mechanism to obtain admissions of has been more widely accepted, “Courts “clear-cut factual matters about which one have held that to warrant discovery of would reasonably anticipate no dispute, and private social media accounts, the defendant the immediate disposition of which would must establish a factual predicate for said not unfairly prejudice the [other party] and request by identifying relevant information would help to expedite the trial” (Risucci v in plaintiff's [social media] account, such as Homayoon, 505 NYS2d 176, 177 [2nd Dept. information that contradicts or conflicts with 1986])”. plaintiff's alleged restrictions, disabilities, losses, and other claims (see Tapp v. New According to “CPLR 3101, there shall be York State Urban Dev. Corp., 102 AD3d full disclosure of all non-privileged matter 620; Patterson v. Turner Constr. Co., 88 which is material and necessary to the AD3d 617)” Gonzalez v. City of New York, defense or prosecution of an action. To this 47 Misc. 3d 1220(A), 16 N.Y.S.3d 792 August 2018
(N.Y. Sup. Ct. 2015). as notices to admit, motion to compel, order to show cause, ect. N.Y. C.P.L.R. 3124 With respect to the use and questioning of states that “If a person fails to respond to or social media at depositions, courts have held comply with any request, notice, that parties are required to answer all interrogatory, demand, question or order relevant questions and lawyers should not be under this article, except a notice to admit allowed to object when the information under section 3123, the party seeking sought is relevant to the claim. In Lieblich v. disclosure may move to compel compliance Saint Peter's Hosp. of City of Albany, 112 or a response”. The party conducting the A.D.3d 1202, 1204, 977 N.Y.S.2d 780, 783 deposition will continue questioning and (2013) the court held that “[a]ll questions gather up all of the questions the deponent posed at depositions should be fully refused to answer and can make them all the answered unless they invade a recognized subject of a single motion for an order to privilege or are palpably irrelevant” compel disclosure under CPLR 3124. The (Tardibuono v. County of Nassau, 181 motion should not be made unless a A.D.2d 879, 881, 581 N.Y.S.2d 443 stipulation was sought or a notice was used [1992]; see Barber v. BPS Venture, Inc., 31 and did not work. It was noted right on the A.D.3d 897, 897, 819 N.Y.S.2d 329 [2006] heels of the CPLR's enactment that an initial )”. New York discovery rules do not motion under CPLR 3124 to compel a condition a party's receipt of disclosure on a disclosure that could have been sought by showing that the items the party seeks mere notice will be denied as actually exist; rather, the request need only premature. See, e.g., Schreter v. Brumer, be appropriately tailored and reasonably N.Y.L.J., October 16, 1963, p. 18, col. 7 calculated to yield relevant information. (Sup. Ct. Queens Co.). Indeed, as the name suggests, the purpose of discovery is to determine if material relevant The attorney may also seek sanction under to a claim or defense exists. Forman v. CPLR 3126 for failures to disclose or Henkin, 30 N.Y.3d 656, 661, 93 N.E.3d 882, respond to questioning. CPLR 3126 states in 887 (2018). pertinent part: “If any party, or a person who at the time a deposition is taken or an While conducting depositions, it is highly examination or inspection is made is an improper for a lawyer to object to officer, director, member, employee or agent questioning that does not meet one of the of a party or otherwise under a party's enumerated exceptions which includes: (a) control, refuses to obey an order for to preserve a privilege or right of disclosure or willfully fails to disclose confidentiality; (b) to enforce a limitation set information which the court finds ought to forth in an order of a court; or (c) when the have been disclosed pursuant to this article, question is plainly improper and would, if the court may make such orders with regard answered, cause significant prejudice to any to the failure or refusal as are just, among person. N.Y. Comp. Codes R. & Regs. tit. them: 22, § 221.2. 1. an order that the issues to which the information is relevant shall be When lawyers experience improper or deemed resolved for purposes of the numerous objections by opposing counsel, action in accordance with the claims there are many ways in which they can of the party obtaining the order; or proceed to remedy the noncompliance such 2. an order prohibiting the August 2018
disobedient party from supporting or there is a strong argument that the objection opposing designated claims or falls under one of the enumerated defenses, from producing in exceptions. Even when a pretrial deposition evidence designated things or items question is perceived as misleading, the of testimony, or from introducing question must and should be answered any evidence of the physical, mental subject to objection, unless it crosses the or blood condition sought to be threshold for interposing a proper instruction determined, or from using certain not to answer. Fed. R. Civ. P. 30 makes witnesses; or clear that “A person may instruct a deponent 3. an order striking out pleadings or not to answer only when necessary to parts thereof, or staying further preserve a privilege, to enforce a limitation proceedings until the order is ordered by the court, or to present a motion obeyed, or dismissing the action or under Rule 30(d)(3)”. any part thereof, or rendering a judgment by default against the While the law around the discoverability of disobedient party.” Social Media platforms is new and N.Y. C.P.L.R. 3126 (McKinney) developing, it is important to keep in mind that in today’s world where a significant “Regardless of whether a court has the portion of a person’s life is documented power to impose the sanctions listed in online, there is a strong possibility the CPLR 3126 on a motion under CPLR 3124, information sought will be highly relevant to it certainly has the power to impose the outcome of the case. sanctions under Part 130 if it finds that the party resisting disclosure has engaged in frivolous conduct. See 22 NYCRR § 130- 1.1(c) (defining frivolous conduct)”. N.Y. C.P.L.R. 3124 (McKinney). In Freidman v. Fayenson, 2013 WL 6392248 (Sup. Ct., New York County 2013), where an attorney instructed his client not to answer questions on nine separate occasions at a deposition, the adverse party brought a motion under CPLR 3024 to compel responses to all nine questions and to impose sanctions under Part 130 of the Uniform Rules.
In conclusion, Social Media platforms should be preserved as if the Plaintiff was a business preserving their electronic data. Social Media can be highly relevant and discoverable when there is a showing it may impact the outcome of the case and when it is likely to lead to relevant and non- privileged information. At depositions, it is likely improper to continuously object to questions regarding social media unless
CLE materials continue on the next page
Excerpts from “Modern Day Discovery Disputes - Cases and Principles -- Version Four”
By: Bradley J. Corsair*
Set forth here are excerpts from the above named discovery guide, which is part of the Spring 2018 “Defendant” journal of Defense Association of New York (“DANY”). These excerpts were provided by the author as a supplement to the content presented in the January 15, 2020 DANY CLE titled “The Bodily Injury Plaintiff’s Background - Obtaining and Admitting the Evidence from Inception through Trial.”
Photographs, Video or Audio of a Party - Surveillance, Social Media and Otherwise
In a wrongful death case, video of the decedent is potentially relevant to damages, such as pecuniary loss and life expectancy.1 Accordingly, the non-party brother of a decedent in such an action was directed to produce a video compilation concerning the decedent, as well as an authorization for the YouTube account where that compilation had been posted; the compilation contained several video clips depicting the decedent’s lifestyle before the defendant’s alleged negligence had occurred.2
As discussed above relative to video during an IME, the Second Department on November 18, 2015 held in Bermejo v. New York City Health and Hospitals Corp.3 that CPLR 3101(i) “requires disclosure of any films, photographs, video tapes or audio tapes of a party, regardless of who created the recording or for what purpose.”4 This “full disclosure” is required “without regard to whether the party in possession of the recording intends to use it at trial.”5 CPLR 3101(i) does state that “there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof” involving a party, or the officer, director, member, agent or employee of a party, and “there shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use.”
It still remains to be seen whether other courts will share the view that 3101(i) is not limited to materials created during surveillance, and so even audio, video and photographs not intended for trial use are open to disclosure. The December 17, 2015 opinion of a divided (3 - 2) First Department in Forman v. Henkin (now reversed by the Court of Appeals, as discussed below)6 addressing materials stored on Facebook, and the scope of such discovery under CPLR 3101(a), had represented a narrower outcome: “in accordance with standard pretrial procedures, plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial. Plaintiff concedes that she cannot use these photographs at trial without having first disclosed them to defendant.”7
In the third version of this article, I noted that the 3-2 divide in Forman could mean that we would hear from the Court of Appeals in that matter. As it has turned out, Forman was decided by the Court of Appeals in February 2018. Defense Association of New York had submitted a brief by its Amicus Curiae Committee. Through that brief, DANY respectfully contended that the First Department’s majority decision should be reversed, and the Court of Appeals should clarify that social media discovery is subject to the same liberal standards as other disclosure in the State of New York. And that is what has transpired. The brief is available on the “Amicus Briefs” page of DANY’s website, www.defenseassociationofnewyork.org.
The defendant in Forman had demanded of plaintiff “all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters.”8 Whereas the First Department limited disclosure of photographs to those the plaintiff intended to use at trial, Supreme Court had more broadly directed the plaintiff to produce “all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters.”9 Supreme Court had also denied much of the disclosure that the defendant had sought, but only the plaintiff appealed to the Appellate Division. The scope of the appeal in the Court of Appeals was therefore limited correspondingly, but there is still much that can be gleaned from the decision.
A fundamental issue debated in Forman at both appellate levels is whether social media disclosure (including photographs and other information stored on social media) should flow from conventional discovery standards without court involvement, versus “a heightened threshold … that depends on what the account holder has chosen to share on the public portion of the account.”10 In the end, the Court of Appeals opined that the former paradigm is correct, stating that “courts addressing disputes over the scope of social media discovery should employ our well-established rules – there is no need for a specialized or heightened factual predicate to avoid improper ‘fishing expeditions.’”11
The Court of Appeals provided a sound rationale for this outcome. It was explained that in most instances, a party can only view social media materials that an opposing party happens to have posted on the public portion of a social media account. “Thus, a threshold rule requiring that party to ‘identify relevant information in [the] Facebook account’ effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is ‘material and necessary to the prosecution or defense of an action’ (see CPLR 3101[a]).”12
In Version Three of this article, I stated that in digesting the Bermejo and Forman Appellate Division opinions concurrently, one might ponder whether posting of photos and video on social media cloaks them in privacy and thereby immunizes materials that would otherwise be disclosed. Responding to the dissent, the Forman First Department majority did express that “the discovery standard we have applied in the social media context is the same as in all other situations—a party must be able to demonstrate that the information sought is likely to result in the disclosure of relevant information bearing on the claims”13 and “the discovery standard is the same regardless of whether the information requested is contained in social media accounts or elsewhere.”14
These statements notwithstanding, the First Department’s majority holding in Forman was viewed by the Court of Appeals as having imposed an unduly heightened threshold for warranting the social media discovery involved there. Given that traditional discovery principles
2
are to apply to social media discovery going forward, uploading a photograph to a social media account should not make it less discoverable than it was beforehand.
Applying traditional discovery principles to the factual record in Forman, the Court of Appeals held that the defendant was entitled to disclosure of all photographs of the plaintiff that were privately posted on Facebook after the accident, that do not depict nudity or romantic encounters. “Defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”15 The plaintiff had alleged spinal and traumatic brain injuries. Her deposition revealed that before the subject accident, she had posted “a lot” of photographs showing her active lifestyle. Given the plaintiff’s acknowledged tendency to post photographs representative of her activities, “there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations.”16
The request for these photographs was thus “reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive.”17 This kind of analysis is necessary since the commencement of a personal injury action does not categorically render a party’s entire Facebook account automatically discoverable.18
Justification for disclosure of social media photographs or video depicting a personal injury plaintiff should exist with some frequency. In discussing how social media commonly provides insight about a person’s customary being, the Forman Appellate Division dissent did opine that “the breadth of information posted by many people on a daily basis creates ongoing portrayals of those individuals’ lives that are sometimes so detailed that they can rival the defense litigation tool referred to as a ‘day in the life’ surveillance video.”19 Indeed, the Second Department has directed exchange of a YouTube video compilation with that kind of scope, as noted in the opening paragraph of this section.
The statutory provision under focus in Forman was CPLR 3101(a). In Version Three of this article, I observed that “there is no mention of 3101(i) or of Bermejo in the majority or dissenting opinions” of the First Department’s decision in Forman. In the Court of Appeals opinion where it is expressed that the First Department erred in limiting disclosure of photographs to those that plaintiff intended to introduce at trial, there is a footnote that states the following (note particularly the second sentence): “Because plaintiff would be unlikely to offer at trial any photographs tending to contradict her claimed injuries or her version of the facts surrounding the accident, by limiting disclosure in this fashion the Appellate Division effectively denied disclosure of any evidence potentially relevant to the defense. To the extent the order may also contravene CPLR 3101(i), we note that neither party cited that provision in Supreme Court and we therefore have no occasion to further address its applicability, if any, to this dispute.”20
An intriguing issue is what the limitations are, if any, on disclosure of photographs or video of a party pursuant to CPLR 3101(i) and Bermejo. At least with respect to CPLR 3101(a), the view of the Forman Appellate Division dissent is that “if a plaintiff claims to be physically unable to engage in activities due to the defendant’s alleged negligence, posted information,
3
including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiff’s former or current activities or abilities will be discoverable.”21 The Appellate Division majority opinion adds that the dissent’s position “would allow for discovery of all photographs of a personal injury plaintiff after the accident, whether stored on social media, a cell phone or a camera, or located in a photo album or file cabinet.”22 It is plausible that this is what Bermejo calls for pursuant to CPLR 3101(i).
For additional discussion relative to social media, see the next section below.
Social Media Discovery
Given the great popularity of social media, it is quite possible that a party or non-party witness has stored information in a social media account that may be of interest to a litigant. Typically a small percentage of such information is available for public viewing. In theory, the remainder of the information, or at least excerpts that ought to be discoverable, can be made available to an adversary in two ways: by a direct production, such as by downloading information from a website and placing it on a CD or flash drive, and through an authorization to a social media service as custodian of the information. One difficulty for counsel has been that even if given an authorization, a social media service may fail or refuse to respond to it.
The Court of Appeals’ February 2018 decision in Forman v. Henkin23 represents a truly significant development with regard to social media discovery. That decision and much of its import relative to social media discovery is discussed above in the section titled “Photographs, Video or Audio of a Party - Surveillance, Social Media and Otherwise.” Review of this important case now continues here.
Before this Court of Appeals decision, the initial reaction of many attorneys who received a demand for social media discovery was to fail or overtly refuse to provide a response. This was ostensibly or actually because of the notion that a party’s information that he placed on social media, and did not make available to the public at large, is both “private” and shielded from disclosure. Moreover, some courts were seemingly imposing a heighted predicate for social media discovery than for other discovery.
Practice and jurisprudence in this area should now change. The paramount upshot from the Court of Appeals in Forman v. Henkin is that the well-established rules for discovery generally are to apply to social media disclosure - “there is no need for a specialized or heightened factual predicate.”24 Moreover, “[i]n a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each.”25 The Court of Appeals added that temporal limitations may also be appropriate, and the account holder can seek judicial protection as to sensitive or embarrassing materials of marginal relevance.26
Forman v. Henkin dealt with two categories of social media discovery materials. One is photographs of a plaintiff, which is reviewed above. Discussion of the other, i.e. a plaintiff’s social media messaging, now follows.
4
Plaintiff Forman had allegedly sustained traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. The subject accident purportedly caused her to have difficulty using a computer and composing coherent messages. A document she wrote contained misspelled words and faulty grammar, allegedly evidencing that she could no longer express herself the way she did before the accident. For example, a simple email could take hours to write because she had to go over written material several times.
One of the defendant’s contentions was that the timestamps on Facebook messages would reveal the amount of time it takes plaintiff to write a post or respond to a message. The defendant also sought the content of messages she posted on Facebook. Supreme Court directed production of an authorization for Facebook records showing each time plaintiff posted a private message after the accident, and the number of characters or words in the messages, but declined disclosure of any content of Facebook posts.
Only the plaintiff appealed to the Appellate Division, and so all appellate review was limited to whether discovery that was required of the plaintiff was not warranted. The First Department ruled in the plaintiff’s favor, relieving her from providing an authorization for the Facebook message data.
Supreme Court’s decision in this regard was ultimately reinstated. According to the Court of Appeals, “it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages.”27
The Court of Appeals in Forman had no occasion to address whether defendant made a showing sufficient to obtain disclosure of content of the plaintiff’s Facebook messages, and, if so, how to avoid discovery of nonrelevant materials. Notably, even before Forman, the First Department was willing to compel Facebook message content if sufficient justification was 28 present.
Following now is a review of other judicial treatment of disputes in this area. For some time now, there has been precedent for obtaining social networking user information directly from a plaintiff, rather than relying on a response from a social media service provider. The Appellate Division has directed an in camera review of a plaintiff’s post-accident Facebook postings for identification of information relevant to that plaintiff’s injuries.29
To justify such relief, one may need to establish a predicate consistent with settled rules for discovery generally. A current standard for evaluating the validity of a social media discovery demand appears to be whether it is “reasonably calculated to yield evidence” that is “relevant” to an assertion of interest that a party has made.30 As in the past, a defendant in a personal injury case may be better positioned by basing such a demand on relevant information e.g. in a Facebook account or other factual source, that contradicts or conflicts with a plaintiff’s alleged restrictions, disabilities, and losses, and other claims.31 An example would be a showing that a photograph or a text post, that is publicly available on social media, tends to contradict a
5
material contention that the plaintiff has made by way of deposition testimony, an affidavit, or a verified pleading.32
A similar foundation is where the plaintiff’s Facebook user profile “contained a photograph that was probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook profile may contain further evidence relevant to that issue.”33 Thus, in that case, it was held that at least some of the discovery sought “will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”34 Accordingly, Supreme Court was to inspect “all status reports, e-mails, photographs, and videos posted on (the plaintiff’s) Facebook profile since the date of the subject accident to determine which of those materials, if any, are relevant to her alleged injuries.”35
Before the Court of Appeals decided Forman v. Henkin, the First Department had conditioned entitlement to social media discovery upon a predicate showing beyond what is typically required to warrant discovery generally. The success of that threshold showing was commonly dependent on what the account holder had chosen to share on the public portion of the social media account.36 Such a heightened showing is no longer required. Still, cases that directed disclosure upon that standard can be studied as examples of factual records which support a social media discovery demand.
It is thus worth reviewing a June 2017 case titled Flowers v City of New York.37 There, the First Department compelled disclosure upon a “threshold showing that examination of the Facebook accounts will result in the disclosure of relevant evidence bearing on the claim.”38 The context for this decision was an action sounding in wrongful arrest and prosecution. Publicly visible Facebook account information of the plaintiff was justification to turn over some of his non-public Facebook content. The plaintiff was directed “to review and provide or permit access to those Facebook and associated Messenger accounts, including their messenger components, and any deleted materials which contain any information connecting plaintiff to the accounts in question … relevant to his claims that he has had no connection to the apartment searched or the contraband located thereat.”39
The plaintiff just referenced was also compelled to provide an authorization permitting Facebook to release a photograph of a relative at this apartment since that might support a defense. The information to be released was to include “any metadata associated with the photograph.”40 However, in respect of privacy concerns, this production was “without prejudice to plaintiff seeking … a protective order for expressly identified materials on these Facebook accounts seeking protection from discovery for reasons other than relevancy.”41
There can be an inverse scenario where a party disputes an allegation that social media account content belongs to him, and seeks discovery as to the origin of that content. This kind of issue came before the Appellate Division, Second Department in April 2017.42 In that case, the plaintiff at a deposition was confronted with printouts of 13 pages that allegedly were from his Facebook account. The printouts appeared to include statements by the plaintiff about visiting a bar, having a great workout, and crossing the Williamsburg Bridge three times. The plaintiff
6
acknowledged that he used a Facebook account in 2010, but denied that the printouts were from his Facebook account and denied that he made the statements.
Toward a potential goal of excluding these social media printouts, the plaintiff demanded information about the individual who obtained that information, and sought to depose that person. Ultimately the plaintiff moved to strike the answer of some of the defendants, and to suppress the transcript of his deposition. While a stricken answer was not warranted, the plaintiff was entitled to the deposition, given that he had no other means to prove or disprove the authenticity of the printouts.43
For additional background, see the article by Paul Zola titled “Obtaining Social Media Evidence During Discovery” in the Winter 2016 “Defendant” journal,44 and the article by Andrea M. Alonso and Kevin G. Faley titled “Social Media and Cell Phone Requests: Not a LOL Matter” in the Summer 2013 “Defendant” journal.45
1 See Reid v. Soults, 114 A.D.3d 921, 980 NYS2d 579 (2d Dept 2014), and 138 A.D.3d 1091, 30 N.Y.S.3d 669 (2d Dept 2016). 2 Id. 3 Bermejo v. New York City Health and Hospitals Corp., 135 A.D.3d 116, 21 N.Y.S.3d 78 (2d Dept 2015). 4 Bermejo, 135 A.D.3d at 146. 5 Id., citing Tai Tran v. New Rochelle Hosp. Medical Center, 99 N.Y.2d 383, 388, 756 N.Y.S.2d 509 (2003). 6 134 A.D.3d 529, 22 N.Y.S.3d 178 (1st Dept 2015), rev’d 2018 WL 828101, 2018 N.Y. Slip Op. 01015 (2018). 7 Forman, 134 A.D.3d at 531 (italics supplied). 8 Forman, 134 A.D.3d at 530. 9 Forman, 2018 WL 828101 at *2, 2018 N.Y. Slip Op. 01015 (2018). 10 Forman, 2018 WL 828101 at *4. 11 Forman, 2018 WL 828101 at *5. 12 Forman, 2018 WL 828101 at *4. 13 Forman, 134 A.D.3d at 532. 14 Forman, 134 A.D.3d at 532. 15 Forman, 2018 WL 828101 at *5. 16 Forman, 2018 WL 828101 at *5. 17 Forman, 2018 WL 828101 at *5. 18 Forman, 2018 WL 828101 at *4. 19 Forman, 134 A.D.3d at 542. 20 Forman, 2018 WL 828101 at *5 and Footnote 6. 21 Forman, 134 A.D.3d at 532. 22 Forman, 134 A.D.3d at 533. 23 Forman v. Henkin, 2018 WL 828101, 2018 N.Y. Slip Op. 01015 (2018). 24 Forman v. Henkin, 2018 WL 828101 at *5. 25 Forman v. Henkin, 2018 WL 828101 at *5. 26 Forman v. Henkin, 2018 WL 828101 at *5. 27 Forman v. Henkin, 2018 WL 828101 at *6. 28 See Flowers v. City of New York, 151 A.D.3d 590, 591, 55 N.Y.S.3d 51 (1st Dept 2017). 29 Spearin v. Linmar, L.P., 129 A.D.3d 528, 11 N.Y.S.3d 156 (1st Dept 2015); Imanverdi v. Popovici, 109 A.D.3d 1179, 971 N.Y.S.2d 911 (4th Dept 2013); Richards v. Hertz Corp., 100 A.D.3d 728, 730, 953 N.Y.S.2d 654 (2d Dept 2012). 30 Accord Forman v. Henkin, 2018 WL 828101 at *5. 31 Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, 958 N.Y.S.2d 392 (1st Dept 2013), had mandated an identification of relevant information in a social media account, as a predicate for discovery of additional
7
information in that account. In view of Forman v. Henkin, this kind of showing is no longer an absolute requirement, but is rather one form of potential support for a social media discovery demand. In this vein, see also Flowers v. City of New York, 151 A.D.3d 590, 591, 55 N.Y.S.3d 51 (1st Dept 2017). 32 See Spearin, 129 A.D.3d at 528. 33 Richards, 100 A.D.3d at 730. 34 Richards, 100 A.D.3d at 730. 35 Richards, 100 A.D.3d at 730. 36 See Forman v. Henkin, 2018 WL 828101 at *4. 37 151 A.D.3d 590, 55 N.Y.S.3d 51 (1st Dept 2017). 38 Flowers, 151 A.D.3d at 591. 39 Flowers, 151 A.D.3d at 591. 40 Flowers, 151 A.D.3d at 591. 41 Flowers, 151 A.D.3d at 591. 42 Lantigua v. Goldstein, 149 A.D.3d 1057, 53 N.Y.S.3d 163 (2d Dept 2017). 43 Lantigua v. Goldstein, 149 A.D.3d at 1059. 44 This edition and many other past “Defendant” journals are available via links on the “Publications” page of DANY’s website: http://defenseassociationofnewyork.org/page-856696. 45 See the “Publications” page of DANY’s website: http://defenseassociationofnewyork.org/page-856696.
* Bradley J. Corsair, an attorney with Kowalski & DeVito, is also a DANY officer, CLE committee co-chair, and member of DANY’s Publications, Technology and Golf Outing committees.
Any views and opinions expressed in these materials article are solely those of the author. Each case has different facts and issues, and any approach suggested here may not be appropriate in a given case.
8
CLE materials continue on the next page
LEON R. KOWALSKI 13 Reid Place, Hawthorne, New Jersey 07506 Home - (973) 636-0716 E-Mail - [email protected]
QUALIFICATIONS
Experienced and adept litigation attorney with significant trial experience as well as substantial management experience. Accustomed to and skilled in the management of a high-volume caseload comprised of complex and high exposure litigation. Skilled in the management of other attorneys. Knowledgeable in New York City litigation practice. Experienced in the representation of a large variety of clients in various areas of litigation.
EDUCATION
SETON HALL UNIVERSITY SCHOOL OF LAW - Newark, New Jersey Juris Doctor, 1997. Disability Law Clinic - Seton Hall Center for Social Justice, 1997. Consumer Law Clinic - Seton Hall Center for Social Justice, 1996.
MONTCLAIR STATE UNIVERSITY - Upper Montclair, New Jersey Bachelor of Arts, Political Science, 1993. Delta Chi Fraternity, President, 1991-1993. Paralegal Certificate, 1993. Internship with the Office of the Newark Municipal Public Defender, 1993. Internship with the Office of State Assemblyman John V. Kelly, 1993.
BAR ADMISSIONS
New York - January 1998 New Jersey - December 1997
LEGAL WORK EXPERIENCE
KOWALSKI & DEVITO - Brooklyn, New York Managing Attorney August 2001 to Present
Staff counsel to AIG, one of the largest property and casualty insurers in the world. Responsible for all aspects of management of the entire firm. As a managing attorney, responsible for managing, overseeing and monitoring a group of 24 attorneys in all aspects of their practice including file handling, client relations, claims relations, claims reporting, motion practice and marketing as well as trial tactics and strategy. Oversight includes a total caseload of approximately 1400 active litigation files. Responsibilities include the management of the entire day to day operations of the firm. In addition, supervision of the attorneys includes file reviews, review of status reports and pre-trial reports, conduct meetings, attend claims roundtables/conference calls and preside over team roundtables where team members will present cases for analysis and review. In addition, supervision includes all financial and budgetary aspects of the day to day Page | 1 operations of the office. Supervision of the firm also includes the management and oversight of a legal support staff of 22 individuals employed in various capacities as secretaries, paralegals and clerks.
Previously held the position of Trial Attorney during which was responsible for the management of assigned caseload consisting principally of high exposure construction accident litigation involving the New York Labor Law. Also handle high exposure cases involving other areas of practice including general liability, automobile negligence, indemnification, insurance coverage, property damage, and construction defect. As a career trial attorney have tried over 60 cases and amassed over 30 jury verdicts. Responsibilities include trials, depositions, motions, court appearances such as conferences and oral argument of motions, and mediations as well as the organization and management of assigned files. Clients are commercial and corporate in nature including mid to large sized construction companies, property developers, various sized and type contractors, municipal authorities, various types of corporations, and property management companies. Also served as a paralegal mentor for the office and a member of the AIG Staff Counsel CLE faculty.
Lectured extensively to lawyers, clients, insurance claims technicians and insurance brokers on many topics including the New York Labor Law, Indemnification, and Economic Damages. Authored article for the Defense Association of New York on certain aspects of the New York Labor Law. Heavily involved in marketing initiatives aimed at both clients and the AIG claims organization intended to gain new clients and lines of business and/or maintain relationships with existing clients.
ZACHARY & ZACHARY, P.C. - Staten Island, New York Trial Attorney January 1998 to August. 2001
Responsible for all aspects of civil cases from inception to verdict for a small firm specializing in defense as outside counsel to several large automobile and premises liability insurers. Experience and responsibilities included: Trials (17 verdicts), depositions (well over 200), motion practice, daily court appearances, conferences, arbitrations, and mediations. Handled files from inception to conclusion.
KUTTNER LAW OFFICES - Millburn, New Jersey Summer Associate/Law Clerk June 1996 to September 1997
Drafted briefs and motions as well as conducted supporting legal research in Civil Litigation. Drafted pleadings, arbitration presentations and settlement agreements. Attended to discovery matters and assisted in trial preparation.
LECTURES and PUBLICATIONS
Presenter of lecture Labor Law and Mitigation of Losses in Construction for Tutor Perini Corp. and AON on September 21, 2010.
Presenter of seminar Labor Law 240(1) and 241(6) for AIG Segmentation Technicians on December 2, 2010.
Presenter of lecture Labor Law and Mitigation of Losses in Construction for Tutor Perini Corp. field personnel and AON at the Resorts World New York construction site in Queens, NY on December 13, 2010.
Page | 2
Presenter of lecture Labor Law and Mitigation of Losses for Manafort Bros. Construction Corp. and Lockton in Plainville, CT on January 7, 2011.
Presenter of seminar Labor Law Accident Investigation from a Lawyer’s Perspective to Gotham Construction Company executives, field supervisors and safety personnel in New York, NY on January 18, 2012.
Presenter of lecture The Labor Law of the State of New York to New York University employees and personnel in New York, NY on February 7, 2012.
Presenter of lecture The Labor Law of the State of New York for D.A. Collins Companies employees in Saratoga Springs, NY on March 6, 2012.
Presenter of seminar Labor Law and Mitigation of Losses in Construction for Columbia University employees and personnel in New York, NY on August 21, 2012.
Presenter of CLE lecture Economic Damages to three AIG Staff Counsel Offices in New York in October of 2012.
Presenter of lecture Economic Damages as part of the AIG First Quarter Symposium to over 100 claims professionals for CE and CLE credit in New York, NY on April 4, 2013.
Presenter of lecture New York State Labor Law and Mitigation of Losses in Construction to the New York Claims Association at the New York State Insurance Fund in New York, NY on May 7, 2013
Author of Liability for Collapsing Walls and Structures Under Labor Law §240(1) for the Defense Association of New York publication The Defendant in February 2014.
Presenter of lecture An Overview to Construction Site Accident Cases: The Labor Law and Its Implications for AIG Claims Professionals and Claims Management for CE and CLE credit in Chicago, IL on May 1, 2014.
Presenter of lecture An Overview to Construction Site Accident Cases: The Labor Law and Its Implications as part of a panel discussion of clients, brokers and insurers sponsored by the AIG Global Claims Relationship Group in New York, NY on October 8, 2014.
Presenter of lecture Labor Law §240(1) – Gravity Related Risks as part of a New York Labor Law and Insurance Symposium coordinated by the AIG Global Claims Relationship Group for insurance brokers in White Plains, NY on April 23, 2015.
Presenter of lecture Handling Damages in Catastrophic Medical Injury Cases for AIG Claims Professionals and Claims Management for CE and CLE credit in Alpharetta, GA on May 14, 2015.
Presenter of lecture Life Care Plans-The Expert’s Perspective and Medical Monitoring as a Remedy as part of the AIG Third Quarter Symposium to over 100 claims professionals for CE and CLE credit in New York, NY on September 29, 2015.
Presenter of lecture Defending Damages in Catastrophic Medical Injury Cases as part of the AIG Fourth Quarter Symposium to over 100 claims professionals for CE and CLE credit in New York, NY on December 10, 2015. Page | 3
Author of No Injury Needed – Medical Monitoring as a Remedy - for the Defense Association of New York publication The Defendant in January 2016.
Presenter of CLE lecture Defending Damages in Catastrophic Medical Injury Cases for the Defense Association of New York on April 4, 2017.
Presenter of CLE lecture New York Labor Law Update – 2017 for the Defense Association of New York on September 25, 2017.
VERDICT REPORTS AND REFERENCES
Available upon request.
Page | 4
Contact [email protected] Jamie Tarallo Personal Injury Attorney - Insurance Defense Attorney www.linkedin.com/in/jamie-tarallo- White Plains, New York a585443b (LinkedIn) Summary Top Skills Microsoft Excel Associate with a demonstrated history of working in the legal Microsoft Word services industry. Skilled in Analytical Skills, Microsoft Word, Microsoft Office Databases, Legal Writing, and Software Documentation. Strong professional graduated from Pace University School of Law. Languages English Experience Certifications PMT Pillinger Miller Tarallo, LLP Lexus Nexus Certified Associate Westlaw Certified January 2018 - Present Elmsford, New York
Personal Injury and Insurance Defense
Work closely with insurance carriers and their insureds on cases from inception through discovery Deal with all aspects of case management and document drafting from reporting, site inspections, depositions, discovery, conferences, motions, settlement etc.
Geist, Schwarz & Jellinek, PLLC Legal Intern May 2016 - July 2016 (3 months) White Plains, NY
Drafted and revised lease agreements, parking agreements and other real estate contracts Prepared legal documents such as complaints, summary judgement motions, default judgment motions, answers etc. Conducted legal research on relevant issues Attended and observed client meetings, court appearances, foreclosure auctions, and real estate closings
Pirrotti & Glatt Law Firm Legal Intern May 2015 - January 2016 (9 months) Page 1 of 3
Scarsdale, New York
Conducted legal research on relevant issues Contacted doctors, clients, and insurance companies to ensure proper documentation was received Wrote and finalized legal documents such as complaints, summary judgement motions, default judgment motions etc. Supported staff with administrative duties including documentation, answering phones, emailing clients and other professionals, and filing
Pillinger Miller Tarallo, LLP Office Assistant June 2011 - August 2014 (3 years 3 months) Conducted legal research on relevant issues Reconciled receipts with invoices to assure funds were received and recorded properly Assured timely retrieval of information by maintaining organized record keeping system Managed filing system to ensure access for legal counsel
Morgan Stanley Smith Barney Wealth Advisor Intern July 2013 - August 2013 (2 months) Shadowed employer to learn more about how personal financial planning works Researched and recorded stock prices based on year into Excel database for advisor access Supported staff with administrative duties including documentation, answering phones and filing
Morgan Stanley Smith Barney Financial Advisor Intern June 2012 - August 2012 (3 months) Researched and developed possible stock opportunities Researched high net worth individuals to document contact information for advisor to solicit as clients Provided administrative duties including answering phones, documentation and emailing clients
Columbia Presbyterian Hospital Medical Intern Page 2 of 3
May 2010 - June 2010 (2 months) Learned medical procedures by observing medical professionals operate Shadowed doctors when they checked on patients and responded to patient needs and questions Acquired interpersonal skills by meeting with patients before and after surgeries
SBS Promos Assistant September 2007 - June 2010 (2 years 10 months) Organized orders to assure proper specifications were met so customer would be satisfied Provided Customers with extra services such as packaging and labeling to make their experience better and more enjoyable Assisted during parties if needed to ensure parties were successful and ran smoothly
Education
Pace University School of Law Doctor of Law - JD · (2014 - 2017)
Elon University Bachelor's Degree, Finance, General · (2010 - 2014)
Elon University - Martha and Spencer Love School of Business Bachelor of Business Administration, Finance; FinanceManagement · (2010 - 2014)
Page 3 of 3
Contact Mark Wilhelmsson www.linkedin.com/in/ Director of Trial Preparation and Background Search Division ➢ 23+ markwilhelmsson (LinkedIn) Years Serving Top Defense Counsel Firms and Carriers www.TerrierClaims.com Pleasantville, New York (Company) www.OurChildsKeeper.com (Company) Summary www.DigitalMarketDesigns.com (Company) Terrier Claims Services (TCS) Trial Preparation and Background Search Division is designed to assist and provide your Firm and your Top Skills Staff with exactly what you need, whenever you need it - 24 hours a Advertising day, 7 days a week. Copywriting Email Marketing TCS has grown to a diverse Staff of over 100, including 81 Investigators representing fluency in over 10 languages with locations in New York, New Jersey and Pennsylvania.
◈ Trial Preparation and Litigation Support
Trial Availability:
We understand that the only way you’re truly able to focus on handling your case through Trial is when you are confident that any and all Witness, Insured, Expert and IME Doctor Trial Availability has been coordinated and communicated to you and the Adjuster in a timely manner.
◈ TCS Enhanced Background Search Services include:
➣ SPOT - Social Profile Online Tracking ➣ Personal and Business Asset Searches ➣ National and Federal Criminal Record Searches ➣ Pharmacy, Medical Treatment and Hospital Sweeps ➣ National DMV Searches and Certified Record Retrieval ➣ National and International Address and Property Records ➣ Multi-State Civil, Supreme and Federal Litigation Searches ➣ National Judgment, Lien, and Bankruptcy Record Searches
◈ Subpoena Preparation and Service of Process
TCS employs a number of Licensed Process Servers, and we have established an extensive network of Licensed Process Servers throughout the United States.
◈ Full Service Insurance and Specialty Investigations
Our extensive list of Full Service Insurance and Specialty Investigative Services include:
➣ Surveillance ➣ PIP / UM / UIM ➣ Medical Malpractice ➣ Property and Construction ➣ Scene Photos and Diagram ➣ Insured and Witness Locates ➣ Signed and Recorded Statements ➣ Worker’s Compensation, Disability ➣ Auto, Trucking, Mass Transit and more!
◈ Let's Connect!
Phone: (914) 769-2000 Email: [email protected] Website: http://www.TerrierClaims.com
Experience
Terrier Claims Services Director of Trial Preparation and Background Search Division November 2018 - Present Pleasantville, New York
Terrier Claims Services (TCS) Trial Preparation and Background Search Division is designed to assist and provide your Firm and your Staff with exactly what you need, whenever you need it - 24 hours a day, 7 days a week.
Our Investigations are individually tailored to meet the demands of each case, and TCS is able to handle all types of Investigations, from case inception through Trial resolution.
Jason J. Gudaitis
Jason J. Gudaitis began his career in the industry as a trainee in 1996. He joined Terrier in 2001 and assisted in opening our New Jersey office. Through his strong performance, he was promoted to the position of Director of Operations. In 2016, Jason was made Managing Director of the TCS NJ location, and then Partner. He currently manages a strong and skilled team of field investigators in the States of NJ and PA in surveillance and claims, and an in-house unit of nationwide desktop investigators specializing in background investigation and media sweeps.
Jason graduated from The College of New Jersey in 2000 with a Bachelor of Science degree in Business Administration and a Minor in Law and Justice. He then received his Fraud Claims Law Specialist designation from the American Educational Institute in 2001 and later became Insurance Fraud Certified from the North American Training Group.
Within the realm of database, complex research, and data mining, Jason has provided expert witness testimony and continues to provide training and consultations to our staff and clients.
Jason J. Gudaitis, FCLS, IFC | Partner | Terrier Claims Services
2640 Hwy 70, Bldg 12, Suite 201 | Wall, NJ | 08736
732.722.8929 O | 732.558.8404 M | 732.722.8934 F | [email protected]
http://www.terrierclaims.com