This post examines an opinion the New York Supreme Court –
Richmond County issued in a civil case: Fawcett v. Altieri, 38 Misc.3d 1022, 960
N.Y.S.2d 592 (New York Supreme Court - Richmond County 2013). The case involves a
suit to
recover for personal injuries allegedly
sustained by the plaintiff, John Fawcett, Jr., a high school student during an
altercation with the defendant, Nicholas Altieri, another high school student,
at a tennis match at St. Joseph By the Sea High School, in Staten Island, New
York.
Fawcett v. Altieri,
supra. The defendants are Nicholas Altieri, his
parents Gerald L. and Laura M. Altieri and St. Joseph by the Sea High
School. Fawcett v. Altieri, supra.
The opinion notes that the plaintiff’s complaint “sets forth
causes of action against the defendants for assault, battery, negligence and
loss of services” and alleges that John Fawcett, Jr. “sustained an injury to
his right eye” in the altercation alleged in the complaint. Fawcett
v. Altieri, supra. In this opinion, the court is ruling on a
dispute about discovery, which, as Wikipedia explains, is the
pre-trial phase in a lawsuit in
which each party, through the law of civil procedure, can obtain evidence
from the opposing party by means of discovery devices including requests for answers
to interrogatories, requests for production of documents, requests for
admissions and depositions.
You can, if you are interested, find a summary of New York
discovery law here.
The issue the court is dealing with arose when the
defendants moved “to compel the production of the social media files of the
plaintiff, John Fawcett, Jr.” and Fawcett, the plaintiff, “cross-move[d] for a
protective order preventing the production of his social media files.” Fawcett v. Altieri, supra. More precisely, the
defendants demanded
`. . . authorizations to permit the defendants to
obtain full access to and copies of Plaintiff's current and historical records
and/or information and photographs on Plaintiff's social media website pages,
including but not limited to Facebook, MySpace, Friendster, Flickr, and any
other social media websites.’
Defendants contend that the plaintiff's
social media accounts are not publically viewable and they have been made
private with no information available for public consumption. It is unclear
when the plaintiff made his social media accounts private.
Fawcett v. Altieri,
supra (quoting Defendants’ motion).
The Supreme Court began its opinion by noting that the
parties’ motions required it to
evaluate the relevance of social media
accounts in the pre-trial discovery phase of a civil action alleging personal injuries. While
social media web sites may be a relatively new phenomenon, the liberal
interpretation of the words “material and necessary” in New York Civil
Practice Law and Rules [CPLR] § 3101(a) remains applicable.
Fawcett v. Altieri,
supra.
CPLR § 3101(a) states that “[t]here shall be full disclosure
of all matter material and necessary in the prosecution or defense of an
action, regardless of the burden of proof” by various enumerated categories of
parties to the suit, witnesses and others with material evidence, experts,
etc. In the rest of the passage quoted
above, the Supreme Court explained that the
liberal interpretation of the words
`material and necessary’ require disclosure, upon request, of any facts bearing
on the controversy that will assist in the preparation for trial by sharpening
the issues and reducing delay and prolixity. A party's right to discovery is
not unlimited, however, and may be curtailed when it becomes an unreasonable
annoyance and tends to harass and overburden the other party. . .
Fawcett v. Altieri,
supra.
The court also noted that it
is without dispute that plaintiffs, who
place their physical condition in controversy may not shield from disclosure
material, which is necessary for the defense of the action It is equally well accepted that discovery is
permitted with respect to not only materials having to do with liability, but
also to damages as well.
Fawcett v. Altieri,
supra.
The Supreme Court then noted that, as to the law
specifically applicable to the issue raised by this case, a survey of relevant
New York cases
dealing with the production of social
media accounts, in both the criminal and civil contexts, reveal a two prong
analysis before courts compel the production of the contents of social media
accounts.
This inquiry requires a determination by the court as to whether the
content contained on/in a social media 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,
supra.
The court began with the issue of whether the information
was “material and necessary”:
Setting aside the fact that John
Fawcett, Jr. turned eighteen years old, the plaintiff submits the affidavit of
his mother Gina Fawcett to support his cross-motion. In her affidavit she
states that her son, `. . . stated . . . that he has no specific memory of using,
discussing this attack, or his injury using social media.’
Furthermore,
plaintiff's counsel argues that access to the plaintiff's social media accounts
sought by the defendants are not relevant to mount a defense against an
allegation of civil assault battery or negligence.
However, to accept such an argument
would ignore the defendants' right to seek discovery relating to the damages
John Fawcett, Jr. sustained as a result of this altercation. Plaintiff's bill of particulars states that the injuries
he sustained as a result of this incident will continue to affect him socially,
educationally, economically, and in the way he pursues recreation into the
future.
Fawcett v. Altieri,
supra.
The Supreme Court noted that the New York Supreme Court –Appellate Division
allows for broad discovery on the issue
of damages where a plaintiff states a general loss of the enjoyment of life due
to injuries sustained as a result of an accident. . . . However, at this early
stage in litigation it is unclear as to whether this information will yield `material
and necessary’ information, or . . . is merely a fishing expedition as the
plaintiff suggests.
Fawcett v. Altieri,
supra.
It then explained that
[s]ocial media web sites, such as
Facebook and Twitter,
exist to allow individuals to interact with `real world’ friends, relatives and those individuals sharing common
interests that may be as close as your own town, or as far away as a distant
continent.
The court takes judicial notice that subscribers to these sites
share their political views, their vacation pictures, and various other
thoughts and concerns that subscribers deem fit to broadcast to those viewing
on the internet.
Whether these broadcasts take the form
of `tweets,’ or postings to a user's `wall,’ the intent of the users is to
disseminate this information. Judge Matthew Sciarrino pointed out in his
decision concerning an `Occupy Wall Street’ protestor charged in the Criminal Court
of New York County that, `[i]f you post a tweet, just like you scream it out
the window, there is no reasonable expectation of privacy.’
Fawcett v. Altieri,
supra (quoting People v. Harris, 36 Misc.3d 868, 949 N.Y.S.2d 590 (Criminal Court, City of New York, New York County 2012)).
The Supreme Court pointed
out that “[a]t the end of 2009 Facebook reset user privacy settings to default
all profiles to public from private”, but that “these privacy settings did not
prevent the president of the Queer Chorus at the University of Texas to add
these two students to a Facebook discussion group which `outed’ them to all of
their Facebook friends, regardless of the pre-set privacy settings.” Fawcett v. Altieri, supra.
Having made that observation, the court explained that the
New York Supreme Court – Appellate Division held in Patterson v. Turner Construction Company, 88 A.D.3d 617, 931
N.Y.S.2d 311 (2011) that materials posted on a Facebook page would not be
shielded from discovery in a civil
matter `. . . merely because plaintiff used the service's privacy
settings to restrict access . . .’ if the material is
relevant to the litigation. These materials may be subject to
production just as material from a personal diary may be discoverable.
While the ultimate privacy and
subsequent disclosure of social media postings are disputable, the facts in
this case are not developed to either compel or preclude their discovery. There
must be a clear factual predicate in order to compel the production of social
media records from the defendants or authorizations for the production of that
material from certain social media providers.
Consequently, on the facts before this
court depositions must be conducted before one can properly determine whether
the plaintiff should be compelled to produce social media records; and
conversely, whether the defendants should be precluded from accessing this
information.
Fawcett v. Altieri,
supra.
The Supreme Court concluded by noting that information
posted on social media
accounts are freely discoverable and do
not require court orders to disclose them. However, this court will not go so
far as to hold that all social media records are material and necessary based
solely on the fact that many people avail themselves to these social media
sites. . . .
[T]o obtain a closed or private social
media account by a court order for the subscriber to execute an authorization
for their release, the adversary must show with some
credible facts that the adversary subscriber has posted information or
photographs that are relevant to the facts of the case at hand.
The courts
should not accommodate blanket searches for any kind of information or photos
to impeach a person's character, which may be embarrassing, but are irrelevant
to the facts of the case at hand.
Fawcett v. Altieri,
supra. It therefore denied the defendants’ motion to
compel the production of the plaintiff’s “social media files”. Fawcett
v. Altieri, supra.
No comments:
Post a Comment