Kelly Forman, Respondent,v.Mark Henkin, Appellant.

Brief

N.Y.January 2, 2018

APL-2016-00222 New York County Clerk’s Index No. 113059/11 Court of Appeals STATE OF NEW YORK KELLY FORMAN, Plaintiff-Respondent, against MARK HENKIN, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT WADE CLARK MULCAHY Attorneys for Defendant-Appellant 180 Maiden Lane New York, New York 10038 212-267-1900 Date Completed: January 30, 2017 >> >> To Be Argued By: Michael A. Bono Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1 JURISDICTIONAL STATEMENT .......................................................................... 4 QUESTIONS PRESENTED ...................................................................................... 5 STATEMENT OF FACTS ........................................................................................ 6 ARGUMENT ........................................................................................................... 14 I. PLAINTIFF’S FACEBOOK RECORDS ARE MATERIAL AND NECESSARY TO THE DEFENSE ................................................................ 14 A. Traditional Discovery Rules Call for Disclosure of Social Media Records in this Case ..................................................................................... 16 1. Plaintiffs in Personal Injury Cases Cannot Shield Evidence Material and Necessary to Their Claims ............................................... 16 2. New York Courts Consistently Promote Social Media Disclosure .............................................................................................. 18 3. Federal Courts Promote Social Media Discovery ................................. 21 4. Plaintiff’s Testimony Specifically Placed Her Own Social Media Usage at Issue, Rendering It Material and Necessary to the Defense ............................................................................................ 22 B. The First Department’s Heightened Threshold Improperly Empowers Parties with Absolute Control of Discovery .............................. 25 1. New York Courts Other Than the First Department Do Not Arbitrarily Restrict the Factual Predicate for Disclosure of Social Media.......................................................................................... 26 2. The First Department’s Restrictive Standard Is Inconsistent with Public Policy Favoring Expansive Discovery and with the Technical Realities of Social Media User Trends .......................... 28 ii a. The Majority Failed to Consider Policy Concerns Previously Highlighted by the First Department ................................................... 29 b. The Proliferation of Social Media and Attendant Trend Toward Privacy Demonstrate the Flaws of the Heightened Standard ............................................................................................... 30 c. Numerous Courts Reject the Heightened Standard’s Tacit Approval of a Social Media User’s Privacy Settings Controlling Discovery ......................................................................... 32 C. Social Media Users Have No Reasonable Expectation of Privacy that Precludes Disclosure of Relevant Records .......................... 35 II. MANDATORY IN CAMERA INSPECTION IS AN UNNECESSARY AND UNDULY BURDENSOME HURDLE TO DISCLOSURE ................................................................................................. 40 CERTIFICATE OF COMPLIANCE ....................................................................... 43 iii TABLE OF AUTHORITIES Cases A.D. v. C.A., 50 Misc. 3d 180, 16 N.Y.S.3d 126 (N.Y. Sup. Ct., Westchester Cnty. 2015) ........................................................28 Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403 (1968) .......................... 16, 17 Bishop v. Minichiello, 2009 BCSC 358 (CanLII, April 7, 2009) ...................................................................................19 Carolan v. N.Y. Tel. Co., No. 83 CIV. 8308, 1984 WL 368 (S.D.N.Y. May 17, 1984) ................................................................................39 Del Gallo v. City of N.Y., 43 Misc. 3d 1235(A), 997 N.Y.S.2d 98 (N.Y. Sup. Ct., N.Y. Cnty. 2014) .......................................28 DiMichel v. South Buffalo Ry. Co., 80 N.Y.2D 184 (1992) ...............................16 E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) ....................................................................................... 18, 38 Faragiano ex rel. Faragiano v. Town of Concord, 294 A.D.2d 893 (4th Dep’t 2002) ...................................................................39 Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592 (N.Y. Sup. Ct., Richmond Cnty. 2013) ....................................... 20, 28, 36, 42 Forman v. Henkin, 134 A.D.3d 529 (1st Dep’t 2015) ....... 3, 5, 13, 25, 31, 34, 41 Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112 (E.D.N.Y. 2013) ....................................................... 21, 24, 33 Gonzalez v. City of New York, 47 Misc. 3d 1220(A), 16 N.Y.S.3d 792 (N.Y. Sup. Ct., Queens Cnty. May 4, 2015) .......................41 Goodridge v. King, 2007 CanLII 51161 (ON S.C. October 30, 2007) ...........................................................................19 Higgins v. Koch Dev. Corp., No. 3:11-CV-81-RLY-WGH, 2013 WL 3366278 (S.D. Ind. July 5, 2013) ...................................................37 iv Hoenig v. Westphal, 52 N.Y.2d 605 (1981) .......................................................17 Jacquelyn v. Macy's Retail Holdings, Inc., No. CV416-052, 2016 WL 6246798 (S.D. Ga. Oct. 24, 2016) ........................................... 21, 33 James v. Edwards, 85 Va. Cir. 139 (Va. Cir. Ct., Greensville Cnty. 2012) ..................................................................................37 Johnson v. Ingalls, 95 A.D.3d 1398 (3d Dep’t 2012) ........................................20 Katz v. United States, 389 U.S. 347 (1967) ........................................................36 Kent v. Laverdiere, 2009 CanLII 16741 (ON S.C., April 14, 2009) ...............................................................................19 Kourtesis v. Horis, 2007 CanLII 39367 (ON S.C. September 24, 2007) .......................................................................19 Kregg v. Maldonado, 98 A.D.3d 1289 (4th Dep’t 2012) ................ 20, 24, 25, 27 Leduc v. Roman, 2009 CarswellOnt 843 (February 20, 2009) .............. 19, 32, 38 Loporcaro v. City of N.Y., 35 Misc. 3d 1209(A), 950 N.Y.S.2d 723 (N.Y. Sup. Ct., Richmond Cnty. 2012) ............................20 McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524 (4th Dep’t 2010) ....................................................................................... 26, 27 McMillen v. Hummingbird Speedway, Inc., No. 113 - 2010 CD, 2010 WL 4403285 (Pa. Ct. Com. Pleas, Jefferson Cnty. Sept. 9, 2010) .........................................................................37 Nieves v. 30 Ellwood Realty LLC, 39 Misc. 3d 63, 966 N.Y.S.2d 808 (1st Dep’t 2013) ................................................................40 Nucci v. Target Corp., 162 So. 3d 146 (Fla. Dist. Ct. App., 4th Dist. 2015) ................................................................................................35 Patterson v. Turner Const. Co., 88 A.D.3d 617 (1st Dep’t 2011) ........................................................ 19, 24, 25, 29, 30, 40, 41 Poole v. Consolidated Rail Corp., 510 U.S. 816 (1993) ....................................16 v Reid v. Ingerman Smith LLP, No. CV 2012-0307 ILG MDG, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012) ....................... 17, 21, 24, 38, 39 Richards v. Hertz, 100 A.D.3d 728 (2d Dep’t 2012)................. 20, 24, 26, 27, 40 Robinson v. Jones Lang LaSalle Ams., Inc., No. 12–CV– 127, 2012 WL 3763545 (D.Or. Aug. 29, 2012) .............................................21 Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk Cnty. 2010) .......................... 17, 18, 24, 30, 32, 37, 42 Sgambelluri v. Recinos, 192 Misc. 2d 777, 747 N.Y.S.2d 330 (N.Y. Sup. Ct., Nassau Cnty. 2002) .................................39 Sourdiff v. Texas Roadhouse Holdings, LLC, No. 10–CV–0408, 2011 WL 7560647 (N.D.N.Y. Oct. 24, 2011) ................................................21 Spearin v. Linmar, L.P., 129 A.D.3d 528 (1st Dep’t June 16, 2015) ................................................................................40 Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d 371 (1991) .....................................................................................17 State v. Buhl, 321 Conn. 688 (Conn. June 21, 2016)..........................................31 State v. Craig, 167 N.H. 361, 369 (N.H. 2015) ..................................................31 Tapp v. N.Y. State Urban Dev. Corp., 102 A.D.3d 620 (1st Dep’t 2013) ..............................................................................................25 United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) ..............................................................................................36 Williams v. N.Y. City Hous. Auth., 22 A.D.3d 315 (1st Dep’t 2005) ..............................................................................................38 Zakrzewska v. New Sch., No. 06 CIV. 5463 (LAK), 2008 WL 126594 (S.D.N.Y. Jan. 7, 2008) .............................................. 18, 39 vi Statutes Civil Practice Act § 288 ......................................................................................16 N.Y. C.P.L.R. § 3101 ......................................................................... 4, 16, 17, 20 References Facebook FAQs, “Control Who Can See What You Share,” (last visited Jan. 24, 2017), https://www.facebook.com/help .....................................................................31 Facebook, Data Privacy Policy, available at: https://www.facebook.com/full_data_use_policy (last accessed: January 24, 2017) ............................................................................37 Huffington Post, Facebook's Zuckerberg Says Privacy No Longer A Social Norm (VIDEO), available at: [Accessed by the court on Oct. 25, 2012; still accessible as of Jan. 24, 2017]) ..................................36 Larry Magrid, “Consumer Reports Finds Very Small Percentage of Facebook Users ‘Sharing Too Much,’” Forbes (May 4, 2012), http://www.forbes.com/sites/larrymagid/2012/05/04/ consumer-reports-finds-very-small-percentage-of- facebook-users-sharing-too-much/#23e 0f266972a. ......................................31 Nick Bolton, Price of Facebook Privacy? Start Clicking, N.Y. Times, May 12, 2010 (available at: http://www.nytimes.com/2010/05/13/technology/personalt ech/13basics.html). .........................................................................................36 Pew Research Center, “The Demographics of Social Media Users,” (2015) available at http://www.pewinternet.org/2015/08/19/the- demographics-of-social-media-users (last visited May 25, 2016) ...............................................................................................................30 vii Stewart Rogers, “80% of consumers have updated their privacy settings, and other barriers of personalization,” VentureBeat (July 22, 2015), http://venturebeat.com/2015/07/22/80-of-consumers- have-updated-their-privacy-settings-and-other-barriers-to- personalization/. ..............................................................................................31 1 PRELIMINARY STATEMENT Defendant-Respondent-Appellant MARK HENKIN (hereinafter “Defendant” or “Henkin”), by and through his attorneys, WADE CLARK MULCAHY, respectfully submits this Brief in support of the appeal from the decision of the Appellate Division, First Department, that reversed the Decision and Order of the New York Supreme Court, New York County, which had compelled limited disclosure of the Facebook account of Plaintiff-Appellant-Respondent KELLY FORMAN (hereinafter “Plaintiff” or “Forman”). The appeal arises out of a discovery dispute over authorizations for social media records. During the past few years, Facebook, Twitter, Instagram, LinkedIn, and other social media networks have become ubiquitous as people of all ages now live in both a real and a virtual world as millions of people share events from their daily lives, both important and mundane, on sites like Facebook. Courts have struggled with how to approach discovery of nonpublic social media in light of this paradigm shift in social interaction as there is really no direct analogy to compare this explosive sharing of personal information. Courts have understandably been concerned with the privacy implications of the disclosure of social media information. But here, the Appellate Division, First Department’s decision regrettably followed the line of precedent where courts created a false dichotomy between the “private and public” sections of the Facebook site which requires a litigant to make a proof showing about information from a party’s public 2 social media account in order to compel discovery of nonpublic social media records. Rather than treating social media like any other potential source of discoverable information, the First Department has required a special, heightened standard for social media records. This heightened standard is a unique exception to New York’s liberal discovery rules, and fails to take into account the important reality that most Facebook material is designated as “private” by the user -- but is then shared with potentially hundreds, if not thousands of other Facebook users, who are then free to disseminate this information. The combination of the First Department’s restrictive standard, which rests entirely on what the account holder has chosen to share on the public Facebook page, and the evolution of social media will inexorably result in the withholding of material and necessary discovery, as it did in this case. Here, Plaintiff alleges she fell from a horse due to the defendant’s negligent maintenance of the tack (e.g., the saddle, stirrups, bridle, and other accessories equipped to horses in the course of riding). As a result of this fall, Plaintiff claims she suffered a traumatic brain injury that rendered her physically incapable of using a computer or engaging in routine social activities. Plaintiff testified that she previously posted to Facebook frequently about her social life and activities, but was unable or unwilling to testify as to how her Facebook usage changed after the accident. Following Plaintiff’s deposition, Defendant requested authorization to access Plaintiff’s Facebook account. When Plaintiff refused to comply, Defendant filed a 3 motion to compel, which the Supreme Court granted in part. Significantly, the Supreme Court limited disclosure to: (1) pre-accident photographs Plaintiff intended to introduce at trial; (2) all non-romantic photographs of Plaintiff post-accident; and (3) a simple summary of any written messages or posts, limited to word and character count, published since the accident. Plaintiff appealed, and the Appellate Division, First Department reversed the trial court order in a 3-2 decision. In a brief decision, the majority embraced First Department precedent, which only permits disclosure of social media records if the requesting party can submit proof -- from within the Facebook account itself --that contradicts the account holder’s claims in the litigation. See, Forman v. Henkin, 134 A.D.3d 529, 529-33 (1st Dep’t 2015) (see also, R. 502-512). As noted in the lengthy dissent by Justice David B. Saxe, joined by Justice Rolando T. Acosta, such a standard is counter to the liberal discovery rules of New York, and further forecloses the possibility of obtaining relevant discovery based purely on the social media account holder’s privacy settings. Id. at 533-43 (see also, R. 513-531). The dissent also correctly observed that decisions by the Appellate Division have improperly created the impression that trial courts must conduct in camera reviews of social media records in all cases prior to disclosure. For the reasons discussed below, the dissent’s concerns are well founded, and the First Department’s heightened standard should be rejected as counter to New York’s longstanding policy of favoring liberal discovery. To embrace the First 4 Department’s standard would elevate a party’s Facebook privacy settings above N.Y. C.P.L.R. § 3101, resulting in the deprivation of necessary discoverable information, and essentially encourage spoliation of material evidence. In no other circumstance can a party control discovery in this manner, without any oversight by even the party’s attorney or the court. In fact, the First Department’s prior precedent warned against this very possibility. Numerous cases in New York and other jurisdictions have also held that neither a party’s privacy settings nor any subjective privacy belief can control the discovery process. Further, enforcement of the proper discovery standard does not require courts to undertake in camera inspection in each case involving social media, as a narrowly tailored discovery order or attorney review are sufficient. JURISDICTIONAL STATEMENT This appeal is jurisdictionally appropriate and timely. This matter is pending before the New York Supreme Court, New York County; and the current appeal originated from the Discovery Order of the Hon. Lucy Billings, filed on March 19, 2014. (R.5-9). Following a timely appeal by Plaintiff, by Order dated December 17, 2015 (and corrected on December 22, 2015), the Appellate Division, First Department reversed the Decision and Order of Justice Billings. The First Department granted Defendant’s timely Motion for Leave to Appeal to this Court on October 20, 2016. On December 1, 2016, this Honorable Court set forth a schedule for the submission of briefs. This brief is submitted on or before January 30, 2017, in 5 accordance with this Honorable Court’s schedule. The Questions Presented are preserved based on the Order of the First Department, including the dissent (see, Forman, 134 A.D.3d 529 (see also, R. 502-531); the briefs filed in connection thereto; and the arguments made by the parties before the Supreme Court (see R.11-29, 34-47, 457-464, 486-493). QUESTIONS PRESENTED 1.) Is Defendant entitled to disclosure of Plaintiff’s social media records under New York’s traditional discovery rules? Yes, based on Plaintiff’s deposition testimony and written discovery submissions, Defendant is entitled to certain information from Plaintiff’s Facebook account because it is material and necessary to analyzing her alleged damage claims, including loss of enjoyment of life, social isolation, and the inability to use a computer. The First Department’s heightened standard should be rejected as it cedes control of discovery to the Facebook user’s privacy settings, and courts in New York and nationwide have repeatedly held that a social media user’s privacy settings or subjective expectation of privacy do not control discovery. 6 2.) Should in camera review of Facebook records be mandatory in all cases prior to disclosure? No, because of the prolific nature of social media in today’s society, mandatory in camera oversight of social media discovery would place an unnecessary and undue burden on trial courts, and can be mooted by a narrowly tailored discovery order and attorney oversight. STATEMENT OF FACTS This appeal arises from Defendant’s efforts to obtain basic discovery of social media records to validate or contradict Plaintiff’s claims of physical, mental, and emotional impairment in a personal injury case. Plaintiff allegedly suffered a traumatic brain injury that, according to her testimony, left her unable to use a computer, participate in any mundane recreational activity, or attend social functions. Plaintiff’s social media records are material and necessary to evaluate these alleged damages, as well as her credibility, but the First Department precluded this discovery based on a recent line of cases that propound a separate, heightened standard of discovery for social media accounts. On June 20, 2011, Henkin and Forman met at Henkin’s home, and then drove to a nearby park with horse riding trails. (R.74-76, Def. Dep. Tr., 27:25-29:16; R.303- 304, Pl. Dep. Tr., 380:13-382:5; R.308-309, Pl. Dep. Tr., 403:15-404:9; R.390). 7 While riding one of Henkin’s horses, plaintiff allegedly lost her balance and fell because the leather stirrup on the saddle, supplied by Henkin, broke (R.313, Pl. Dep. Tr., 420:5-421:7; R.389-391; R.400-414). After the accident, Forman and Henkin went out to dinner, but never saw each other again after that evening. (R. 127-133, Def. Dep. Tr., 80:4-86:9). On November 17, 2011, Plaintiff filed suit alleging Henkin negligently tacked up the horse, causing her to fall; and, as a result, she “suffered serious, severe and permanent personal injuries, has been prevented from attending her usual activities and duties, has sought and will continue to need medical care and treatment, has sustained pain and suffering, and has been damaged in an amount exceeding the jurisdiction of all other courts.” (R. 389-391). In her verified Bill of Particulars, dated April 6, 2012, Plaintiff set forth a litany of alleged injuries under the following categories: (a) “Head and Brain;” (b) “Spine;” and (c) “Extremities.” (R. 402-404). With respect to the first category, among other claims, Plaintiff allegedly sustained a “Traumatic Brain Injury” that caused, in part, the following symptoms or effects: - Cognitive Deficits … - Inability to Concentrate - Difficulty Reading - Difficulty in Reasoning … - Difficulty in Communicating - Difficulty in Word-finding - Difficulty in Mult-Tasking[sic] - Personality Changes - Social Isolation 8 - Depression … - Inability to Watch Television and Movies (R.403-404). Plaintiff further claimed her injuries “have adversely affected [her] activities of daily living, and have limited her abilities to participate in recreational, family and social activities;” and that these “permanent and progressive” injuries could “lead to chronic pain, depression, early onset dementia, brain atrophy, Alzheimer’s disease, and epilepsy.” (R.405). In a written statement that Plaintiff submitted on February 22, 2013, at the first day of her deposition, Plaintiff alleged “feeling hopeless that any form of having a meaningful life, being able to function or connect with people the way [she] once did was a distant past life.” (R. 416). She further claimed her “whole life had changed drastically” and she “became isolated from [her] friends.” After stating she no longer had “the energy to keep up with the world that [she] was a part of and it’s left [her] behind” (R.416), Plaintiff listed a number of other purported effects from her accident including:  “I DON’T EXPRESS MYSELF THE SAME WAY, LACK OF COMPOSER [sic].” (R.416);  “IF I PUSH TO [sic] MUCH, NOISE, COMPUTER, ANYTHING. IT CAN TAKE DAY’S [sic] TO WEEKS FOR ME TO RECOVER.” (R.417);  “AN EMAIL CAN TAKE HOURS TO WRITE. I MISS WORDS AND LETTERS. I HAVE TO GO OVER AND OVER IT TO MAKE SURE IT MAKES SENCE [sic].” (R.417); 9  “I CAN NO LONGER DO ANY OF THE THINGS I LOVED. COOKING, PHOTOGRAPHY, TRAVEL, EVENTS, SPORTS, RIDING, MOVIES, THEATER, BOATING, PAINTING, DRAWING, MAKING JEWELRY, READING, DOING MY HAIR COLOR, SENCE [sic] OF STYLE WHEN GETTING DRESSED.” (R.417);  “MY SOCIAL NETWORK WENT FROM HUGE TO NOTHING.” (R.417); and  “THAT’S [going to dinner at 6:00pm] WHAT KEEPS ME FROM FEELING COMPLETELY ISOLATED.” (R.417). At her deposition, Plaintiff testified in general terms as to the physical and emotional impact of the alleged accident, and claimed that she could not perform mundane activities without becoming fatigued: Q. Are there particular things that you do that really brings out the fatigue? A. When I do what would be normal to you or anybody else, is a lot for my brain, and it brings on my symptoms. MR. RONEMUS: Anything you do? THE WITNESS: Anything. Yes. And I feel – sorry. Q: Have you experienced depression since the accident? A: Yes. I get really depressed. (R.357, Pl. Dep. Tr., 599:10-20). Among the many every day activities that Plaintiff claimed she could no longer perform, Plaintiff testified that she was no longer able to read “whatsoever;” could barely read or compose texts; and required hours to compose simple messages on the computer, including the statement she submitted on 10 the first day of the deposition. (R. 352, Pl. Dep. Tr., 576:8-578:13). Plaintiff claimed using a computer exhausted her, and testified “it can take [her] hours to write something that’s just a paragraph because [she has] to keep going over it over and over it and over it.” (R.351, Pl. Dep. Tr., 573:8-574:3). Plaintiff’s doctors allegedly counseled her against using a computer, and Plaintiff further testified she “couldn’t handle the computer for more than 10 minutes without really, really harming [herself].” (R.351, Pl. Dep. Tr., 573:8-574:22). She further maintained she could no longer socialize and experienced feelings of near total isolation: Q. How has your personality changed since the accident? A. I’m not as energetic… You know, I’m a different person. I’m very reclusive compared to the way I used to be. I get bored very easily because I used to be a very outgoing person. So my social outing to get out of the apartment is to go to dinner or coffee… I’m just very isolated. (R.353, Pl. Dep. Tr., 582:11-583:6). Plaintiff elaborated that she has largely stopped communicating with or seeing her friends as a result of her inability to socialize. (R.353-354, Pl. Dep. Tr., 583:7-586:9). Plaintiff testified that before the accident, she had a rich social life filled with travel and recreational activities, which she documented on Facebook. (R. 244, Pl. Dep. Tr., 250:2-11). In particular, Plaintiff said: Q. Did you post photographs on your Facebook account? A. A lot. Yes. 11 Q. What did the photos show you doing? A. Oh, everything. They were all nice, you know, fun pictures with friends, my dogs or, you know, different, fun, nice things in Australia with koalas and kangaroos, or at the beach. (Id.). But Plaintiff could not testify with any further detail about her post-accident Facebook usage. (R. 244, Pl. Dep. Tr., 250:12-251:10). For instance, she could not explain whether she ever posted a status message: Q. There’s an option, I’ll represent to you, to post your status on Facebook, to say how you’re doing. Have you ever done that? A. I don’t think so. I don’t think so. I might post a pretty picture or, you know, a nice saying or something, but -- (R. 244, Pl. Dep. Tr., 251:4-9). She further could not provide any information whatsoever concerning her Facebook usage following the accident: Q. Have you posted any photographs on your Facebook page since the accident? A. I don’t – I can’t say for sure. I doubt it, because I kind of went through a phase, you know, when it’s new and – MR. RONEMUS: He asked if you posted since the accident. A. I can’t say for sure. (R. 244, Pl. Dep. Tr., 250:12-19). Plaintiff admitted that her Facebook account remained active until she deactivated it in June or August of 2012, approximately one year after her accident. (R. 243, Pl. Dep. Tr., 248:8-248:25). Plaintiff claimed the 12 deactivation of her Facebook account contributed to her social isolation. (R.193, Pl. Dep. Tr., 47:16-20). Plaintiff’s public Facebook account just prior to deactivation revealed a single, outdated photograph of Plaintiff. (R.43). Following the deposition, on March 6, 2013, Henkin requested authorization to access information from Forman’s Facebook account. (R.431). On May 10, 2013, Plaintiff objected to the demand as “beyond the scope of discovery.” (R.436). Henkin moved the trial court for an order compelling full access to the Plaintiff’s Facebook records, including photos and messages prior to the deactivation of her account. (R.30-47). Recognizing that Plaintiff had placed at issue her physical ability to socialize, use the computer, and perform simple tasks (including composing emails and text messages), Justice Billings granted Henkin’s motion. (R.5-9). In doing so, she issued a very narrowly tailored order attempting to balance Henkin’s right to information that is material and necessary to defend this lawsuit against Plaintiff’s interest in protecting against the disclosure of irrelevant and personal information. (R.5-8). The trial court ordered Plaintiff to produce: (a) all photographs of herself posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself posted on Facebook after the accident; and (c) Facebook records, including archived or deleted records, showing each time plaintiff posted a private message and the number of characters or words in the text of each 13 private message, from the date of her injury until she deactivated her Facebook account. (R.9). On December 17, 2015, the Appellate Division, First Department granted Plaintiff’s appeal and reversed the trial court’s order, although it recognized that Plaintiff “alleges that the accident resulting in cognitive and physical injuries that have limited her ability to participate in social and recreational activities.” Forman, 134 A.D.3d at 529 (see also, R. 503). In the majority’s opinion, the only reference to Plaintiff’s discovery submissions was: “At her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.” Id. Rather than considering the relevance of Plaintiff’s testimony or written submissions, the First Department simply ruled that Defendant was not entitled to disclosure of Plaintiff’s Facebook account because Defendant had not submitted proof from the Facebook account itself that contradicted Plaintiff’s claims. Id. at 530-33 (see also, R. 502-512). Both Justice Acosta and Justice Saxe dissented from the majority in an in-depth opinion written by Justice Saxe. Id. at 533-43 (see also, R. 513-531). Justice Saxe argued the majority’s opinion and the cases upon which it relied: (1) created a heightened standard that would necessarily and unfairly preclude discovery of social media records relevant to a party’s claims; and (2) instituted a policy of mandatory in 14 camera inspection by the trial court prior to disclosure and after the heightened threshold had been met. Id. ARGUMENT I. PLAINTIFF’S FACEBOOK RECORDS ARE MATERIAL AND NECESSARY TO THE DEFENSE The First Department’s heightened standard creates a unique exception to New York’s liberal discovery rules not found in any other context. For decades, New York courts have favored broad discovery, especially in the personal injury context where a plaintiff has affirmatively placed her physical, mental, or emotional health at issue. With the advent of social media sites, the courts were confronted with how to address discovery in the context of this new medium, and the majority of courts in New York simply applied the traditional discovery rules to this new medium. Similarly, federal courts in New York and across the nation refused to apply a special standard to requests for social media records. In evaluating such requests, these courts properly considered any proof of relevance, including a party’s own testimony or claims. Contrary to the weight of authority, the First Department developed a heightened standard that departs from the traditional standard. Rather than consider all available evidence, the First Department restricted its inquiry to whether there is publicly available proof from within the social media account itself that undermines the social media account user’s claims in the litigation. In no other context is a litigant required 15 to have access to a smoking gun from within the category of discovery sought in order to establish a predicate for full disclosure. Ironically, in earlier decisions the First Department warned that the privacy settings could not govern discovery. The new standard, however, permits exactly that because the social media user determines what, if anything at all, is shared publicly from the account by adjusting her privacy settings. In the event the settings maximize privacy (or the social media account is deactivated), it is impossible for a litigant to obtain information from the account and, therefore, cannot meet the First Department’s new, heightened threshold. This scenario frustrates the purpose of pre- trial discovery, and will be repeated at a statistically alarming rate. Courts have recognized that the vast majority of adults use social media, and in the future it will be rare to encounter a litigant that does not have a social media account. Further, nearly all current social media users have set their privacy settings from public to private. Embracing the First Department’s standard, therefore, is akin to foreclosing discovery of social media accounts in the majority of cases. In the litigation below, the Plaintiff invited such an outcome based on her alleged privacy interest in her account. In placing her ability to socialize and to use a computer at issue, however, any limited privacy right should be deemed waived. Further, courts in New York and across the nation have repeatedly recognized that a social media user has no reasonable expectation of privacy. Not only do they freely share information with their “friends,” who in turn are free to share it in any manner 16 they please; but each social media user is advised in the Terms of Conditions of the social media platform of the fact that their information is not truly private. In the end, the social media user chooses to share her thoughts, activities, and photographs at her own risk, and cannot hide relevant discovery by means of arbitrary privacy settings. A. Traditional Discovery Rules Call for Disclosure of Social Media Records in this Case Based on Plaintiff’s sworn testimony and statements concerning her physical and emotional damages, Defendant has demonstrated that information from Plaintiff’s Facebook account is material and necessary to the defense, warranting disclosure. 1. Plaintiffs in Personal Injury Cases Cannot Shield Evidence Material and Necessary to Their Claims “New York has long favored open and far-reaching pretrial discovery.” DiMichel v. South Buffalo Ry. Co., 80 N.Y.2D 184, 193 (1992), cert denied sub nom Poole v. Consolidated Rail Corp., 510 U.S. 816 (1993). Liberal discovery was favored under New York’s former section 288 of the Civil Practice Act in order to permit parties to prepare for trial, and the enactment of CPLR § 3101 simply continued the trend of expanding the scope of pre-trial discovery. Allen v. Crowell- Collier Pub. Co., 21 N.Y.2d 403, 406–07 (1968). CPLR § 3101 calls for “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof….” As stated by the Court of Appeals, “[t]he words, ‘material and necessary’, are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts 17 bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” Id. at 406. As a result, “[t]he test is one of usefulness and reason,” and the term “necessary” is thus “held to mean ‘needful’ and not indispensable.” Id. at 406-07. Ultimately, CPLR § 3101 “embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise.” Spectrum Sys. Int'l Corp. v. Chem. Bank, 78 N.Y.2d 371, 376 (1991). With respect to personal injury cases, “Plaintiffs have placed their physical condition in controversy and may not insulate from disclosure material necessary to the defense concerning that condition.” Hoenig v. Westphal, 52 N.Y.2d 605, 610 (1981). In such cases, discovery of materials relating to damages and the extent of an alleged injury, including loss of enjoyment of life, is generally required because it is material and necessary to the defense. Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650, 652–57 (N.Y. Sup. Ct., Suffolk Cnty. 2010). It is difficult to find a more personal medium than a diary, but court have held “[e]ven personal diaries are discoverable if they contain relevant information regarding contemporaneous mental states and impressions of parties.” Reid v. Ingerman Smith LLP, No. CV 2012-0307 ILG MDG, 2012 WL 6720752, at *2 (E.D.N.Y. Dec. 27, 2012) (citation and internal quotation marks omitted). Although courts are mindful of the personal nature of certain classes of evidence such as diaries, “it would be unfair also to permit a plaintiff claiming emotional distress to block 18 discovery of facts that may shed important light on whether any emotional distress actually was suffered, whether any emotional distress that did occur had a serious impact on the plaintiff's life, and whether any emotional distress was attributable, either in whole or in part, to circumstances other than the alleged conduct of the defendant.” Zakrzewska v. New Sch., No. 06 CIV. 5463 (LAK), 2008 WL 126594, at *2 (S.D.N.Y. Jan. 7, 2008). 2. New York Courts Consistently Promote Social Media Disclosure The weight of authority, as well as basic policy considerations, favors treating social media akin to any other form of discovery. As noted by the Southern District of Indiana in an oft quoted decision on this point, “[d]iscovery of [social networking sites] requires the application of basic discovery principles in a novel context.” E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010). New York courts have similarly observed that the same discovery rules should apply to requests for social media records. The first New York decision to consider this issue was Romano, 907 N.Y.S.2d at 655-56. Absent any authority in New York, the Romano court looked to cases in Canada that first dealt with this issue. Id. at 655. The Ontario Superior Court of Justice previously held “it was ‘beyond controversy’ that a person’s Facebook page may contain relevant documents…and, it is reasonable to infer from the social networking purpose of Facebook, that even if a person only maintains a private profile with the public profile merely listing their name, that 19 relevant information exists on their limited-access private pages.” Id. (discussing, Leduc v. Roman, 2009 CarswellOnt 843 (February 20, 2009)). The Leduc court further reasoned: To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial. Id. (quoting Leduc, 2009 CarswellOnt 843). Relying on a number of Canadian cases, the Romano court concluded that the contents of social media accounts, by their very nature, are absolutely relevant to the defense of personal injury cases in which the plaintiff alleges a loss of enjoyment of life or inability to socialize. Romano, 432, 655 (discussing Kent v. Laverdiere, 2009 CanLII 16741 (ON S.C., April 14, 2009); Bishop v. Minichiello, 2009 BCSC 358 (CanLII, April 7, 2009); Goodridge v. King, 2007 CanLII 51161 (ON S.C. October 30, 2007); Kourtesis v. Horis, 2007 CanLII 39367 (ON S.C. September 24, 2007)). New York courts repeatedly reached the same conclusion in decisions that followed. As noted by the First Department, when a plaintiff alleges “damages for physical and psychological injuries, including the inability to work, anxiety, post- traumatic stress disorder, and the loss of enjoyment of life,” Facebook posts are relevant to contest “plaintiff's alleged restrictions, disabilities, and losses, and other claims.” Patterson v. Turner Const. Co., 88 A.D.3d 617, 618 (1st Dep’t 2011). The Second Department similarly recognized that social media accounts contain material 20 relevant to claims for loss of enjoyment of life and the ability to engage in mundane recreational activities, and ordered disclosure accordingly. Richards v. Hertz, 100 A.D.3d 728, 729-31 (2d Dep’t 2012). The Fourth Department has also held that social media accounts are relevant to “claims for the diminution of the injured party's enjoyment of life,” and ordered disclosure to this effect. Kregg v. Maldonado, 98 A.D.3d 1289, 1290 (4th Dep’t 2012). Although the Third Department has yet to rule on this specific pre-trial discovery issue, it has held that social media posts are relevant and admissible at trial in refuting claims of inactivity and social anxiety resulting from personal injury. Johnson v. Ingalls, 95 A.D.3d 1398, 1400 (3d Dep’t 2012). Similarly, New York trial courts have also applied traditional discovery rules to discovery requests for social media records. See, Fawcett v. Altieri, 38 Misc. 3d 1022, 1023–24, 960 N.Y.S.2d 592, 594 (N.Y. Sup. Ct., Richmond Cnty. 2013) (“While social media web sites may be a relatively new phenomenon, the liberal interpretation of the words ‘material and necessary’ in CPLR § 3101(a) remains applicable.”); Loporcaro v. City of N.Y., 35 Misc. 3d 1209(A), 950 N.Y.S.2d 723 (N.Y. Sup. Ct., Richmond Cnty. 2012) (“Clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material”). 21 3. Federal Courts Promote Social Media Discovery Federal courts have often held that social media records are relevant to claims of emotional distress, mental health damages, and loss of enjoyment of life. Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 114–17 (E.D.N.Y. 2013) (the court ordered production of any social media records pertaining to specific reference of emotional distress, and further observed that plaintiff has “opened the door” to discovery of posts relating to any other stressor); Reid, 2012 WL 6720752, at *1 (citation omitted) (“there is no dispute that social media information may be a source of relevant information that is discoverable” including, in a personal injury case, posts that reflect a “plaintiff’s emotional or mental state, her physical condition, activity level, employment, this litigation, and the injuries and damages claimed.”). See also, Jacquelyn v. Macy's Retail Holdings, Inc., No. CV416-052, 2016 WL 6246798, at *7 (S.D. Ga. Oct. 24, 2016) (“Because [one plaintiff]'s physical condition and the [other plaintiff’s] quality of life are both at issue in this case, … plaintiffs' Facebook postings reflecting physical capabilities and activities inconsistent with their injuries are relevant and discoverable.”); Robinson v. Jones Lang LaSalle Ams., Inc., No. 12–CV–127, 2012 WL 3763545, at * 1 (D.Or. Aug. 29, 2012) (observing that it is “reasonable to expect severe emotional or mental injury to manifest itself in some social media content”); Sourdiff v. Texas Roadhouse Holdings, LLC, No. 10–CV–0408, 2011 WL 7560647, at *1 (N.D.N.Y. Oct. 24, 2011) (as relevant to the defense, the court ordered disclosure of social media records that “are 22 in any way related to plaintiff's emotional or mental state, her physical condition, activity level, employment, this litigation, and the injuries and damages claimed by plaintiffs in their complaint in this action”). Accordingly, the weight of authority supports applying traditional discovery rules to social media records. 4. Plaintiff’s Testimony Specifically Placed Her Own Social Media Usage at Issue, Rendering It Material and Necessary to the Defense Under the traditional rule, disclosure is warranted because Plaintiff’s Facebook records are material and necessary to the defense of Plaintiff’s claims of physical and emotional damages. In this case, Plaintiff allegedly suffered a traumatic brain injury with permanent debilitating effects, including the inability to use a computer or socialize. To briefly reiterate, before the accident, Plaintiff claimed she enjoyed a busy social life, replete with varied recreational activities, which she documented on her Facebook account. (R.244, Pl. Dep. Tr., 250:2-11; R.403-404; R.416-417). Following the accident, Plaintiff claimed an inability to partake in any recreational or even basic activity. (R.357, Pl. Dep. Tr., 599:10-20; R.403-404; R.416-417). She further stated her social network deteriorated to virtually non-existent due to her inability to engage in basic social functions. (R.353-354, Pl. Dep. Tr., 583:7-586:9). As a result, Plaintiff testified she became a recluse, fearing to leave her apartment out of concern for 23 “overtax[ing] [her] brain.” (R.358, 600:3-8). She further stated these concerns have given rise to depression or emotional distress. (R.358, 600:3-8). Plaintiff’s feelings of social isolation allegedly worsened after she deactivated her Facebook account, nearly one year after the accident. (R.193, Pl. Dep. Tr., 47:16- 20). Although Plaintiff provided general information about her Facebook usage before the accident, she was unable or unwilling to testify as to how she used her Facebook account after the accident. (R.244, Pl. Dep. Tr., 250:2-251:10). Based on her testimony about her tremendous difficulty in using a computer after the accident, Plaintiff’s Facebook usage would necessarily be very limited. In particular, Plaintiff claimed it would take hours to compose simple messages (although at another point she testified she could only use the computer for 10 minute intervals), and that the effort to use a computer was so debilitating or taxing it would take days or weeks to recover. (R.351, Pl. Dep. Tr., 573:8-574:3; R.352, Pl. Dep. Tr., 576:8-578:13; R.416- 417). Justice Billings recognized Defendant’s need to evaluate plaintiff’s “ability to read, reason, find words, write, and communicate effectively,” and also recognized that independent medical examinations and a review of Plaintiff’s simple writing product “may not fully reveal the frequency, speed, and volume of her writing.” (R.7). Accordingly, Justice Billings ordered limited disclosure of Plaintiff’s private Facebook account. (R.7). Again, if the subject accident truly rendered Plaintiff incapable of using a computer, then the frequency, quality, and complexity of her 24 posts and messages would demonstrably change post-accident, and would be memorialized in the timestamps and word count of the messages or posts. Arguably, Defendant should be entitled to full disclosure of Plaintiff’s Facebook account in order to properly evaluate her claimed injuries. But Justice Billings limited the order to allow Defendant to evaluate these claims against Plaintiff’s privacy concerns. Justice Billings also correctly ordered disclosure of post-accident photographs, particularly because Plaintiff could not testify as to whether she posted any photographs post-accident. (See, R.6; R. 244, Pl. Dep. Tr., 250:12-19). Any photograph of Plaintiff engaged in a social or recreational activity would contradict her claims of essentially being unable to do anything social after the accident. (See, e.g., R.417). Further, as set forth exhaustively above, social media accounts are freely discoverable as material and necessary to evaluate claims of loss of enjoyment of life, physical injury, and emotional damages. See, e.g., Patterson, 88 A.D.3d at 618; Richards, 100 A.D.3d at 729-31; Kregg, 98 A.D.3d at 1290; Romano, 907 N.Y.S.2d at 655-56; Giacchetto, 293 F.R.D. at 114–17; Reid, 2012 WL 6720752, at *1. Plaintiff’s “private” Facebook account is, therefore, material and necessary to the defense of this matter because it pertains to her claims of physical and emotional damages, alleged loss of enjoyment of life, and credibility. Under the longstanding traditional rules of liberal discovery and upon a clear demonstration of relevance, such information is freely discoverable. See, supra. 25 Accordingly, Justice Billings’ Order should be reinstated and the First Department’s Order should be vacated. B. The First Department’s Heightened Threshold Improperly Empowers Parties with Absolute Control of Discovery The First Department’s majority ruling is not in line with established New York precedent in respect of all other discovery contexts and instead, elevates a Facebook account holder’s privacy settings above the CPLR requirements, essentially barring discovery of social media accounts in the vast majority of cases. The standard at issue was first propounded in Tapp v. N.Y. State Urban Dev. Corp., 102 A.D.3d 620, 620–21 (1st Dep’t 2013). There, the First Department held “[t]o warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account—that is, information that ‘contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.’” Id. (quoting Patterson, 88 A.D.3d at 618; citing also, Kregg, 98 A.D.3d at 1290). Here, the First Department interpreted Tapp as precluding any relevant proof other than proof positive from within the Facebook account itself. Forman, 134 A.D.3d at 530 (see also, R. 505-506). Indeed, the majority’s decision mentioned Plaintiff’s testimony and alleged damages only in passing, rather than as part of its relevancy analysis. Id. at 529-31 (see also, R. 502-512). Limiting disclosure in such a manner must be rejected as inconsistent with New York’s longstanding discovery 26 policy of favoring broad pre-trial discovery, particularly in personal injury cases in which the litigant has placed her physical, mental, or emotional health at issue. As stated above, in all other discovery contexts, New York only requires an indication that the information sought is material and necessary to the defense or prosecution of the action. In no other context is a litigant required to have some access to the material sought, and provide proof from that limited access that there is information that bolsters or undermines the prosecution or defense. 1. New York Courts Other Than the First Department Do Not Arbitrarily Restrict the Factual Predicate for Disclosure of Social Media Only the First Department applies a separate standard to social media. On this point, the majority decision incorrectly held that the Second and Fourth Departments specifically require a factual predicate from within the account itself. Id. at 530-31 (see also, R. 505-507) (discussing, Richards, 100 A.D.3d at 730-31; McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 1525 (4th Dep’t 2010). Neither the Second nor Fourth Department, however, ruled out the possibility of establishing a factual predicate through traditional discovery means. See, Richards, 100 A.D.3d at 730-31; McCann, 78 A.D.3d at 1525. Although each case considered information from a social media account, it would be a logical fallacy to conclude that mere consideration of such probative evidence is akin to strictly and solely requiring it. In Richards, one plaintiff’s publicly available profile picture was probative as to the extent of his alleged injuries, and the Second Department concluded that 27 “defendants made a showing 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.” 100 A.D.3d at 730. The Second Department’s standard—requiring a demonstration of relevance or reasonable likelihood of it—is a far cry from mandating proof of relevance from within the Facebook account itself. Id. The First Department broadened the holding in Richards, as the Second Department never ruled out the use of other information as a factual predicate for social media discovery. Similarly, in McCann, the Fourth Department held that the defendant had failed to establish a factual predicate warranting disclosure of the social media account. 78 A.D.3d at 1525. At no point did the McCann court ever rule that the defendant failed to demonstrate relevance because the only way to do so is by submitting proof from the publicly available portions of the social media account itself. Id. See also, Kregg, 98 A.D.3d 1289-90 (4th Dep’t 2012) (request for social media records was denied as overbroad with leave to remake a narrowly tailored demand relating to the claims and without reference to any requirement for evidence from within the account itself). In fact, despite the Tapp standard espoused by the First Department, subsequent written decisions reflect that trial courts continue to apply traditional New York discovery rules, rather than follow Tapp. Most recently, the Westchester County Supreme Court ordered production of a Facebook account in a child custody dispute in order to either verify or contradict an allegation about the amount of time a spouse 28 spent with the child. A.D. v. C.A., 50 Misc. 3d 180, 183–85, 16 N.Y.S.3d 126, 128–29 (N.Y. Sup. Ct., Westchester Cnty. 2015). No proof from the Facebook account was submitted and, instead, the determination was based solely on the tacit expectation that the Facebook account would likely record the spouse’s interactions with her child. Id. Further, in Del Gallo v. City of N.Y., 43 Misc. 3d 1235(A), 997 N.Y.S.2d 98 (N.Y. Sup. Ct., N.Y. Cnty. 2014), the court cited Tapp but did not limit the factual predicate to proof from within the social media account. Instead, the Del Gallo court ordered disclosure of records from the plaintiff’s LinkedIn account involving communications with recruiters based solely on her deposition testimony about her use of LinkedIn to respond to recruiters. Id., 43 Misc. at *6, 997 N.Y.S.2d at 98. See also, Fawcett v. Altieri, 38 Misc. 3d 1022, 1025-26, 960 N.Y.S.2d 592, 596 (N.Y. Sup. Ct., Richmond Cnty. 2013) (holding that the court cannot rule on the motion to compel disclosure of social media records, or the motion for a protective order regarding the same, until after depositions have been conducted). 2. The First Department’s Restrictive Standard Is Inconsistent with Public Policy Favoring Expansive Discovery and with the Technical Realities of Social Media User Trends The Tapp/Forman standard departs from the expansive discovery policies of the past, instead favoring an approach that restricts litigants abilities to obtain relevant information. This overly narrow view of discovery further fails to appreciate the 29 extent to which control over discovery has now been handed to the litigants themselves. a. The Majority Failed to Consider Policy Concerns Previously Highlighted by the First Department Ironically, the First Department case that formed the cornerstone for the Tapp and Forman decisions, Patterson v. Turner Const. Co., 88 A.D.3d 617, expressly cautioned against the approach ultimately embraced by Tapp. In Patterson, the trial court conducted an in camera review and determined that at least some portions of the plaintiff’s Facebook account contained discoverable information. Id. at 618. On appeal, the First Department noted that other portions of the Facebook account might not contain relevant information, an rather than sanctioning wholesale disclosure, remanded the matter to the trial court for a more precise identification of relevant information. Id. Like the Second and Fourth Departments, the Patterson court did not foreclose the possibility of proving entitlement to disclosure based solely on traditional discovery means, such as deposition testimony. Id. Instead, the Patterson court (in line with the Second and Fourth Departments) acknowledged that Facebook posts were potentially relevant to “Plaintiff claims damages for physical and psychological injuries, including the inability to work, anxiety, posttraumatic stress disorder, and the loss of enjoyment of life….” Id. at 618. 30 In addition, the court stated, as a policy matter, “[t]he postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access, just as relevant matter from a personal diary is discoverable.” Id. (citing, (Romano, 30 Misc.3d at 433–434). Here, the majority relied upon Tapp and Patterson in reaching the decision below but failed to consider the policy implications highlighted by Patterson. b. The Proliferation of Social Media and Attendant Trend Toward Privacy Demonstrate the Flaws of the Heightened Standard Given the technical aspects of social media accounts and evolving user trends, Patterson’s concerns over a user shielding relevant information are well founded and troubling. Social media, and specifically Facebook, has become so widely used that the majority of litigants can be expected to have an account, and nearly all users have rendered their account “private.” As recently observed by the Supreme Court of Connecticut, “[t]he prevalence of Facebook use in American society cannot be reasonably questioned. Indeed, a 2015 survey performed by the Pew Research Center reveals that 72 percent of American adults that use the Internet also use Facebook.” State v. Buhl, 321 Conn. 688, 700–01 (Conn. June 21, 2016) (citing, e.g., Pew Research Center, “The Demographics of Social Media Users,” (2015) available at http://www.pewinternet.org/2015/08/19/the-demographics-of-social-media-users (last visited May 25, 2016)). Similarly, the Supreme Court of New Hampshire noted 31 “Facebook and other social media sites are becoming the dominant mode of communicating directly with others, exceeding email usage in 2009.” State v. Craig, 167 N.H. 361, 369 (N.H. 2015). Accordingly, Justice Saxe rightly opined that “Facebook and other similar social networking sites are so popular that it will soon be uncommon to find a personal injury plaintiff who does not maintain such an on-line presence.” Forman, 134 A.D.3d at 543 (see also, R. 531). In recent years, Facebook users have shifted from public to private profiles. In 2012, only 9% of users either set privacy settings, or purposely chose not to set their privacy settings. 1 By 2015, 80% of users had set their privacy settings – an increase of 71% of users in only three years.2 Thus, the vast majority of cases going forward will be limited in the same manner as the defense in this case – to a party’s public profile, which would only include “name, profile picture, cover photo, gender, username, user ID (account number), and networks….”3 In such circumstances, absent a “smoking gun” profile picture, disclosure would be precluded under the First Department’s Tapp standard. 1 Larry Magrid, “Consumer Reports Finds Very Small Percentage of Facebook Users ‘Sharing Too Much,’” Forbes (May 4, 2012), http://www.forbes.com/sites/larrymagid/2012/05/04/ consumer-reports-finds-very-small-percentage-of-facebook-users-sharing-too-much/#23e 0f266972a. 2 Stewart Rogers, “80% of consumers have updated their privacy settings, and other barriers of personalization,” VentureBeat (July 22, 2015), http://venturebeat.com/2015/07/22/80-of- consumers-have-updated-their-privacy-settings-and-other-barriers-to-personalization/. 3 See, Facebook FAQs, “Control Who Can See What You Share,” (last visited Jan. 24, 2017), https://www.facebook.com/help. 32 c. Numerous Courts Reject the Heightened Standard’s Tacit Approval of a Social Media User’s Privacy Settings Controlling Discovery The first case in New York to analyze this issue in-depth rejected the line of reasoning later used in Tapp. Without any prior authority in New York, the Romano court looked to cases in Canada. Romano, 907 N.Y.S.2d at 655, where the Ontario Superior Court of Justice previously held “it was ‘beyond controversy’ that a person’s Facebook page may contain relevant documents,” which may exist only “on their limited-access private pages.” Id. (discussing, Leduc, 2009 CarswellOnt 843). The Leduc court further reasoned: To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial. Id. (quoting Leduc, 2009 CarswellOnt 843). Similarly, Federal courts have also rejected the reasoning behind the Tapp standard of the First Department. As stated by the Eastern District, “[t]he Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it. Furthermore, this approach improperly shields from discovery the information of Facebook users who do not share any information publicly.” Giacchetto, 293 F.R.D. at 114, n. 1. See also, Jacquelyn, 2016 WL 6246798, at *7 (citing Giacchetto, supra) (“The Court, however, is unconvinced that the Federal Rules of Civil Procedure require a “threshold showing” that relevant 33 evidence already exists before a party can request production of that same relevant evidence.”) This Court should similarly reject the Tapp/Forman standard as it subverts the traditional discovery process. As stated above, Plaintiff has affirmatively placed her physical and emotional health at issue. By her own testimony, she has established the relevance of her Facebook account by, among other things, stating she could no longer socialize or use a computer. As such, a social media application like Facebook is the perfect medium to confirm or contradict these claims. The First Department, however, has empowered Plaintiff with sole control of discovery, based first on her privacy settings, and subsequently on her decision to deactivate her account. This standard creates a roadmap for litigants to deprive parties of relevant discovery, and indirectly promotes spoliation of otherwise discoverable evidence. On this point, it warrants noting that Plaintiff never argued before the lower courts that her Facebook page does not contain relevant information. Instead, she solely relied upon the limited precedent in the First Department and maintained that Defendant had not met the Tapp threshold. Based on user trends for social media privacy settings noted above, it is a statistical certainty that other litigants will similarly be deprived of relevant information. Allowing the wholesale deprivation of discovery into social media accounts does not serve the interests of justice. The importance of social media records in appropriate circumstances is evident. As rightly observed in the dissent 34 here by Justice Saxe, “[t]he 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.” Forman, 134 A.D.3d at 542 (see also, R. 530). Furthermore, Defendant in this case has no ability to recreate this extensive record. Plaintiff only testified about her Facebook and social habits in the most general of terms. Regardless, her testimony alone, even if more expansive, would not be sufficient to fully encapsulate the alleged damages she suffered. As recently noted by the Florida District Court of Appeals, Fourth District: In a personal injury case where the plaintiff is seeking intangible damages, the fact-finder is required to examine the quality of the plaintiff's life before and after the accident to determine the extent of the loss. From testimony alone, it is often difficult for the fact-finder to grasp what a plaintiff's life was like prior to an accident. It would take a great novelist, a Tolstoy, a Dickens, or a Hemingway, to use words to summarize the totality of a prior life. If a photograph is worth a thousand words, there is no better portrayal of what an individual's life was like than those photographs the individual has chosen to share through social media before the occurrence of an accident causing injury. Nucci v. Target Corp., 162 So. 3d 146, 152 (Fla. Dist. Ct. App., 4th Dist. 2015). Furthermore, the Facebook account would provide a candid assessment of damages in a way that testimony could not. Id. (“Such photographs are the equivalent of a ‘day in the life’ slide show produced by the plaintiff before the existence of any motive to manipulate reality.”). 35 Accordingly, the First Department’s heightened standard must be rejected to avoid the inevitable result that relevant information will be withheld from discovery based solely on a social media account holder’s privacy settings or decision to deactivate the account. C. Social Media Users Have No Reasonable Expectation of Privacy that Precludes Disclosure of Relevant Records In addition to the policy concerns above, privacy settings should not control discovery because social media users who become litigants do not have a constitutionally protected or even a reasonable expectation of privacy sufficient to preclude disclosure. In her appeal to the First Department, the plaintiff argued she has a reasonable expectation of privacy in her social media account based on the Fourth and Fourteenth Amendments to the Constitution. (Pl. App. Brief, pp. 8-9). This position has been considered and soundly rejected. “A person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable.” United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) (citing Katz v. United States, 389 U.S. 347 (1967) (Harlan, J. concurring)). Although the Southern District acknowledged that a Facebook user’s subjective belief, based on self-designated privacy settings, that the account is private, the court ultimately found that the expectation of privacy is not reasonable. Id. at 525-26. In particular, the Meregildo 36 court held that the defendant’s “legitimate expectation of privacy ended when he disseminated posts to his ‘friends’ because those ‘friends’ were free to use the information however they wanted—including sharing it with the Government.” Id. at, 526 (citation omitted). In other words, “[w]hen [the defendant] posted to his Facebook profile and then shared those posts with his ‘friends,’ he did so at his own peril.” Id. Furthermore, “the wider [the defendant’s] circle of ‘friends,’ the more likely [his] posts would be viewed by someone he never expected to see them.” Id. Any claim of an expectation of privacy at the time of publication should further be disregarded given the history of Facebook. In 2009, Facebook changed its default settings from “private” to “public.” Fawcett, 960 N.Y.S.2d at 596. In an interview in 2010, Mark Zuckerberg and Sheryl Sandberg, the founder and chief executives of Facebook, extolled the change as being in keeping with a societal trend favoring public discourse. Id. (discussing Huffington Post, Facebook's Zuckerberg Says Privacy No Longer A Social Norm (VIDEO), available at: [Accessed by the court on Oct. 25, 2012; still accessible as of Jan. 24, 2017]). At the time, users had to undertake a complex process to render their account private, and were still advised that certain personal information would be shared with third-parties. See, Nick Bolton, Price of Facebook Privacy? Start Clicking, N.Y. Times, May 12, 2010 (available at: 37 http://www.nytimes.com/2010/05/13/technology/personaltech/13basics.html). In other words, substantial public attention was given to Facebook’s privacy policy. Furthermore, at all pertinent times, Facebook has posted its privacy policy, which expressly warns all users that posting is done at their own risk. See, Romano, 907 N.Y.S.2d at 655 (discussing the policy in effect in 2009). See also, Higgins v. Koch Dev. Corp., No. 3:11-CV-81-RLY-WGH, 2013 WL 3366278, at *3 (S.D. Ind. July 5, 2013) (discussing Romano, supra); James v. Edwards, 85 Va. Cir. 139, at *2 (Va. Cir. Ct., Greensville Cnty. 2012) (“Facebook's privacy policies dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else”); McMillen v. Hummingbird Speedway, Inc., No. 113 - 2010 CD, 2010 WL 4403285 (Pa. Ct. Com. Pleas, Jefferson Cnty. Sept. 9, 2010) (based on a plain reading of the privacy policy, “Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion.”). Facebook’s current data privacy policy, which was last revised on September 29, 2016, similarly warns that Facebook collects and shares information with third parties, and further that “people you share and communicate with may download or re-share this content with others on and off our Services.” See, Facebook, Data Privacy Policy, available at: https://www.facebook.com/full_data_use_policy (last accessed: January 24, 2017). 38 As a result, although a social media user might expect to limit the scope of disclosure of her social media account, “merely locking a profile from public access does not prevent discovery….” Simply Storage, 270 F.R.D. at 434 (S.D. Ind. 2010). After all, “Facebook is not used as a means by which account holders carry on monologues with themselves.” Id. at 437 (quoting Leduc, 2009 CarswellOnt 843, at ¶31). Ultimately, the limited privacy concerns at issue are “more ‘germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose’ rather than affording a ‘basis for shielding those communications from discovery.’” Reid, 2012 WL 6720752, at *2 (quoting Simply Storage, 270 F.R.D. at 434). Further, and as noted above, in a personal injury action in which a plaintiff has affirmatively placed her physical, mental, or emotional health at issue, concerns over privacy or embarrassment do not preclude discovery of relevant discovery. New York courts frequently order discovery of personal materials, such as diaries or wedding tapes, recognizing that this evidence is relevant to a party’s claims or defenses. See, e.g., Williams v. N.Y. City Hous. Auth., 22 A.D.3d 315, 316 (1st Dep’t 2005) (plaintiff’s “notes, diaries, journals and other writings” were subject to disclosure as relevant records of her claims of discrimination and harassment); Faragiano ex rel. Faragiano v. Town of Concord, 294 A.D.2d 893, 894 (4th Dep’t 2002) (personal diary of former employee of defendant was discoverable); Reid, 2012 WL 6720752, at *2 (“[e]ven personal diaries are discoverable if they contain relevant information 39 regarding contemporaneous mental states and impressions of parties.”); Zakrzewska, 2008 WL 126594, at *2 (granting discovery of plaintiff's diary because “it would be unfair ... to permit a plaintiff claiming emotional distress to block discovery of facts that may shed important light on whether any emotional distress actually was suffered”); Sgambelluri v. Recinos, 192 Misc. 2d 777, 780–81, 747 N.Y.S.2d 330, 332–33 (N.Y. Sup. Ct., Nassau Cnty. 2002) (wedding video discoverable because it is potentially relevant to the plaintiff’s claim of permanent neck and back injuries); Carolan v. N.Y. Tel. Co., No. 83 CIV. 8308, 1984 WL 368, at *1-4 (S.D.N.Y. May 17, 1984) (diary subject to disclosure because it is a contemporary account of alleged damages). Further, as noted by the Southern District in Carolan, disclosure of a diary is necessary to counteract both the fallibility of the plaintiff’s memory and the need to verify the plaintiff’s claims given her inherent self-interest in altering the version of facts to better suit the case. Carolan, 1984 WL 368, at *4. Ultimately, Plaintiff does not have a constitutional right to privacy in her social media account, or even a reasonable expectation of privacy. Further, Plaintiff affirmatively placed her physical, mental, and emotional health at issue, and cannot preclude production of a contemporaneous record of these damages based on alleged privacy concerns. To the extent any actual privacy rights might be implicated, it warrants noting that Justice Billings protected this concern through a narrowly tailored order. (R.5-9). In particular, Justice Billings only ordered production of (a) pre- accident photographs Plaintiff intended to introduce at trial, (b) post-accident 40 photographs that are not of an embarrassing nature, and (c) basic information (word count, time stamp, etc.) concerning her posts and messages without revealing the content. (R.5-9). As a result, Plaintiff’s alleged privacy interest in her Facebook account cannot preclude production in this case, and Justice Billings Order should be reinstated. II. MANDATORY IN CAMERA INSPECTION IS AN UNNECESSARY AND UNDULY BURDENSOME HURDLE TO DISCLOSURE Justice Saxe correctly observed that precedent within the First Department and the Appellate Division has mandated in camera review of social media accounts, thereby creating the impression in lower courts that in camera review is strictly required. On three occasions, the First Department has mandated that a trial court conduct in camera review of the records prior to disclosure. Spearin v. Linmar, L.P., 129 A.D.3d 528, 528 (1st Dep’t June 16, 2015); Nieves v. 30 Ellwood Realty LLC, 39 Misc. 3d 63, 64, 966 N.Y.S.2d 808, 808-09 (1st Dep’t 2013); Patterson, 88 A.D.3d at 618. The Second Department has likewise remanded a matter for in camera review prior to disclosure. Richards, 100 A.D.3d at 730. This issue was of such concern for Justice Saxe that he reversed course in a matter of months in order to garner the attention of this Court. Specifically, Justice Saxe joined in the decision of Spearin, but six months later sought to correct any impression of mandatory in camera review 41 by penning the strong dissent in this case. Forman, 134 A.D.3d at 537-38 (see also, R. 573-531). Justice Saxe’s concerns are well founded as such rulings appear to have compelled trial courts to conduct in camera review in at least one instance. Recently, the Queens County Supreme Court was obligated to conduct in camera review based on the First Department’s standard. Gonzalez v. City of New York, 47 Misc. 3d 1220(A), 16 N.Y.S.3d 792 (N.Y. Sup. Ct., Queens Cnty. May 4, 2015). In particular, the Gonzalez court held: The Court have[sic] recognized, however, that a person’s Facebook profile or other social media accounts, may contain material of a private nature that is not relevant, the Supreme Court should conduct an in camera inspection of all status reports, e-mails, photographs, and videos posted on the plaintiff's social media accounts since the date of the accident to determine which of those materials, if any, are relevant to the alleged claim and injuries. Id. (citing Patterson, 88 A.D.3d 617). Every Facebook account potentially contains material that is not relevant, but it should not be to the trial court in every instance to determine this. Given how overburdened trial courts are, in camera review should be but one tool available to the court. In the past, the trial court has observed that in camera review “should not be the all purpose solution” since the courts lack the resources to sift through “hundreds of transmissions.” Fawcett, 960 N.Y.S.2d at 597–98. In contrast to ordering the trial court to act as a filter, the first New York court to consider this issue ordered full disclosure, noting that the need for access far outweighed any limited privacy interest of the disclosing party. Romano, 907 N.Y.S.2d at 655-57. Although in camera review should certainly be a tool at the disposal of the courts, the trial courts should also be free to craft a narrow order limiting disclosure, as Justice Billings did here. Rather than limiting the available discovery tools, this Court should ensure that trial courts are free to regulate discovery through well-crafted orders or other traditional means. CONCLUSION For the foregoing reasons, Defendant respectfully requests that this Honorable Court reverse the First Department and affirm the Order of the Supreme Court compelling limited disclosure of Plaintiffs Facebook account. Dated: New York, New York January 30, 2017 WADE CLARK MULCAHY el Borto, Esq. Brian Gibbons, Esq. Christopher J. Soverow, Esq. Attorneys for Defendant-Respondent 180 Maiden Lane, Suite 901 New York, NY 10006 (212) 267-1900 Our File No.: 150.7270 42 43 CERTIFICATE OF COMPLIANCE In accordance with 500.13(c) of the New York Court of Appeals, this computer generated brief was prepared using the Microsoft Word, and a proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point Size: 14 point Line spacing: Double. The total number of words in the brief, exclusive of the statement of the status of related litigation, the table of contents, the table of cases and authorities, and the statement of questions presented, is 9,682.