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

Brief

N.Y.Jan 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. REPLY BRIEF FOR DEFENDANT-APPELLANT WADE CLARK MULCAHY Attorneys for Defendant-Appellant 180 Maiden Lane New York, New York 10038 212-267-1900 Date Completed: April 26, 2017 >> >> To Be Argued By: Michael A. Bono Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 1 I. DEFENDANT IS ENTITLED TO DISCLOSURE OF PLAINTIFF’S FACEBOOK RECORDS .................................................. 1 A. Plaintiff’s Arguments Further Demonstrate Disclosure of Social Media Records is Required under the Traditional Discovery Rules .......................................................................................... 2 1. Plaintiff Ignores Her Own Testimony And Established Legal Precedent Demonstrating Materiality ..................................... 2 2. Whether Defendant’s Initial Demand Is Unduly Broad Is Neither Properly Before The Court Nor Does It Preclude Disclosure Of Social Media Records In This Case As A Matter Of Law ................................................................. 7 3. Defendant Is Not Obligated Or Able To Obtain Similar Information Through Alternative Discovery Methods ...................13 B. The First Department Advocates For A Heightened Standard That Has Been Repeatedly Rejected By Other Courts .............................15 C. Disclosure Is Not Precluded By Plaintiff’s Alleged Privacy Interest As A Matter Of Law ....................................................................18 II. MANDATORY IN CAMERA INSPECTION IS AN UNNECESSARY AND UNDULY BURDENSOME HURDLE TO DISCLOSURE ..................................................................21 CERTIFICATE OF COMPLIANCE ....................................................................... 23 ii TABLE OF AUTHORITIES Cases Anderson v. City of Fort Pierce, No. 14-14095-CIV, 2015 WL 11251963 (S.D. Fla. Feb. 12, 2015) ........................................................17 Beye v. Horizon Blue Cross Blue Shield, Civ. No. 06–5337, 2007 WL 7393489 (D.N.J. Dec. 14, 2007) .....................................................20 Brown v. City of Ferguson, No. 15-CV-00831, 2017 WL 386544 (E.D. Mich. Jan. 27, 2017) .......................................................... 17, 19 Caputi v. Topper Realty Corp., No. 14–cv–2634, 2015 WL 893663 (E.D.N.Y. Feb. 25, 2015) ....................................................... 9, 10, 11 Collens v. City of New York, No. 03 Civ. 4477, 2004 WL 1395228 (S.D.N.Y. June 22, 2004).................................................................21 E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. 2010) ............................................................................. 7, 11, 17, 20 Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592 (N.Y. Sup. Ct., Richmond Cnty. 2013) ..........................................................20 Forman v. Henkin, 134 A.D.3d 529 (1st Dep’t 2015) ........................................14 Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112 (E.D.N.Y. 2013) ............................................................ 11, 16 Higgins v. Koch Dev. Corp., No. 11-cv-81, 2013 WL 3366278 (S.D. Ind. July 5, 2013) ...................................................................... 6 Holter v. Wells Fargo & Co., 281 F.R.D. 340 (D. Minn. 2011) .................................................................................................... 9, 11, 12 Johnson v. Ingalls, 95 A.D.3d 1398 (3d Dep’t 2012) ......................................5, 7 Kavanaugh v. Ogden Allied Maint., 92 N.Y.2d 952 (1998) ...............................14 Kregg v. Maldonado, 98 A.D.3d 1289 (4th Dep’t 2012) .................................5, 7 iii Lewis v. Bellows Falls Congregation of Jehovah’s Witnesses, Bellows Falls, Vermont, Inc., No. 14-CV-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016) ............................................. 9, 10, 19 Nucci v. Target Corp., 162 So.3d 146 (Fla. Dist. Ct. App. 2015) ...........................................................................................................6, 14 Orr v. Macy's Retail Holdings, Inc., No. CV416-052, 2016 WL 6246798 (S.D. Ga. Oct. 24, 2016) .......................................................6, 17 Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346 (M.D. Fla. 2014) .............................................................................................19 Patterson v. Turner Const. Co., 88 A.D.3d 617 (1st Dep’t 2011) ...........................................................................................................5, 16 Reid v. Ingerman Smith, LLP, No. CV 2012-0307, 2012 WL 6720752 (E.D.N.Y. Dec. 27, 2012) ......................................................... 11, 19 Richards v. Hertz, 100 A.D.3d 728 (2d Dep’t 2012)........................................5, 7 Robinson v. Jones Lang LaSalle Ams., Inc., No. 12–CV– 127, 2012 WL 3763545 (D.Or. Aug. 29, 2012) ...........................................6, 7 Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk Cnty. 2010) ............................................. 6, 16, 19 Rozell v. Ross-Holst, No. 05 CIV. 2936, 2006 WL 163143 (S.D.N.Y. Jan. 20, 2006) ................................................................ 9, 12, 13, 22 Sourdiff v. Texas Roadhouse Holdings, LLC, No. 10–CV– 0408, 2011 WL 7560647 (N.D.N.Y. Oct. 24, 2011) ........................................ 6 Tomkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) .....................................................................................................19 United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) ...............................................................................................................19 References Facebook, Help Center, “Downloading Your Info,” available at: (last accessed 4/20/17) ....................................................................................15 1 PRELIMINARY STATEMENT Defendant-Respondent-Appellant MARK HENKIN (hereinafter “Defendant” or “Henkin”), by and through his attorneys, WADE CLARK MULCAHY, LLP, respectfully submits this Brief in further 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”), and in reply to the opposition submitted by Plaintiff. ARGUMENT I. DEFENDANT IS ENTITLED TO DISCLOSURE OF PLAINTIFF’S FACEBOOK RECORDS Plaintiff’s opposition carefully avoids discussing critical facts and issues, and instead seeks to hide behind smoke and mirrors. Among other points, Plaintiff fails to analyze in any appreciable way: Plaintiff’s alleged emotional, cognitive, mental health, and physical damages; the narrow scope of the trial court’s order; and the policy concerns, as set forth in numerous cases, over the First Department’s heightened standard and the lack of a reasonable privacy interest in social media accounts. Instead, Plaintiff misstates Defendant’s relevancy arguments, submits a legal argument not properly before the Court, and then misapplies that very standard. In addition, Plaintiff summarily concludes, without analysis or legal support, that the 2 First Department’s heightened standard does not differ from the traditional rule; the trial court’s order was not narrowly tailored; and the First Department’s order below was fair. A. Plaintiff’s Arguments Further Demonstrate Disclosure of Social Media Records is Required under the Traditional Discovery Rules At the outset, it warrants noting Plaintiff agrees with Defendant in large part. In the Appellate Brief, Defendant argued and established the same liberal rules should govern disclosure of social media records as apply to any other form of discovery. (App. Brief, pp. 14-21). Plaintiff concedes in her opposition that the same rules should apply. (Opp. Brief, pp. 14-18). However, Plaintiff argues (1) Defendant failed to demonstrate materiality, (2) the discovery request should be denied as overbroad (an issue not properly before this Court, but should be rejected in any event) and intrusive upon Plaintiff’s privacy rights, (3) the First Department did not create a heightened standard, and (4) Defendant should obtain this information from other discovery avenues. As a matter of fact, law, policy, and logic, Plaintiff’s arguments fail on all accounts. 1. Plaintiff Ignores Her Own Testimony And Established Legal Precedent Demonstrating Materiality Having placed her physical ability to use a computer, socialize, engage in recreational and mundane activities, and her mental and emotional health at issue, Plaintiff has no legitimate ground to contest the limited disclosure of her Facebook 3 account. Rather than analyze her own testimony or refute Defendant’s thorough analysis of it, Plaintiff instead makes the following distortions of Defendant’s arguments and the record: 1. “Defendant claims it met the material and necessary standard by showing…plaintiff’s testimony regarding her activity on Facebook and its connection to her social life. It is simply not right to imply that anyone who brings a personal injury action must disclose all aspects of his or her Facebook records, simply upon proof that plaintiff maintained a Facebook account.” 2. “Defendant claims that plaintiff placed her social activities in dispute because she claimed that she is socially isolated as a result of the accident, implying that isolation must mean that plaintiff cannot go into a Facebook account and post pictures of herself.” 3. “Plaintiff’s claim that she suffered cognitive injuries does not mean she cannot go on Facebook or that anything on that site that arguably impacts her life is automatically discoverable.” (Opp. Brief, pp. 26-27). By contrast, Defendant set forth, in succinct detail, the totality of circumstances justifying disclosure in this particular case. (App. Brief, pp. 22-25). Among other things, Plaintiff testified that, prior to the accident she enjoyed a busy social life replete with numerous recreational activities, all of which were documented on her Facebook account. (App. Brief, p. 22). Subsequent to the accident, she claims she was unable to participate in any recreational activity, mundane activities became nearly impossible, and she became unable to engage in basic social functions, rendering her into a virtual recluse. (App. Brief, pp. 22-23). As a result, she 4 developed depression and emotional distress. (App. Brief, p. 23). Furthermore, Plaintiff recounted her inability to use a computer, claiming, among other things, it would take hours to compose a single message and the experience would leave her so debilitated it would take days to recover. (App. Brief, p. 23). Thus, it is not simply the filing of the action and the existence of the account itself that warrants discovery. Rather, it is Plaintiff’s specific testimony establishing her decreased Facebook usage as a metric for her loss of enjoyment of life, emotional, cognitive, mental health, and physical damages. It is not Plaintiff’s ability to post pictures of herself that is at issue, but instead her testimony that she often previously documented social and recreational activities in her Facebook account that she is incapable of doing post-accident. If she engaged in and documented on Facebook numerous social and recreational activities pre-accident, then her post-accident Facebook usage should reflect a sharp change to correspond with the alleged inability to partake in such ventures. Similarly, based on Plaintiff’s claims of physical and cognitive impairment, there necessarily must be a marked distinction between the sophistication and frequency of her usage of the computer program pre- and post- accident. As held by the trial court, Defendant is entitled to production of post-accident photographs to verify Plaintiff’s claims of her inability to engage in activities, and to basic information (e.g., number of characters) concerning private Facebook messages 5 as part of Defendant’s attempts to verify Plaintiff’s cognitive injuries, which reportedly rendered her unable to compose emails or text messages. (R. 6-7).1 Under New York’s liberal discovery rules, Defendant is entitled to materials relevant to rebut Plaintiff’s specific claims of physical, cognitive, emotional, and social impairment. See, Richards v. Hertz, 100 A.D.3d 728, 729-31 (2d Dep’t 2012) (social media records are relevant to claims of loss of enjoyment of life or ability to engage in mundane activities); Kregg v. Maldonado, 98 A.D.3d 1289, 1290 (4th Dep’t 2012) (disclosure of social media records ordered as material and necessary to refute “claims for the diminution of the injured party’s enjoyment of life”); Johnson v. Ingalls, 95 A.D.3d 1398 (3d Dep’t 2012) (contents of social media account admissible at trial to refute claims of social anxiety); Patterson v. Turner Const. Co., 88 A.D.3d 617 (1st Dep’t 2011) (Facebook records were material and necessary to refute claims of “damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life”); Romano v. 1 In her factual recitation, Plaintiff misstates the trial court’s position on the importance of Plaintiff’s Facebook compositions. According to Plaintiff, “[a]t oral argument, the trial court noted that the medical and psychological examinations were going to be the best evidence of plaintiff’s alleged diminished ability to read and write.” (Opp. Brief, p. 10, citing R. 14-15). But the transcript itself shows that Justice Billings simply asked whether an independent medical examination would constitute superior proof, to which Defendant responded that the timestamps of the messages would indicate Plaintiff’s ability to utilize the program. (R. 14-16). Further, Justice Billings explicitly ordered production of pre- and post-injury writings, and physical and psychological examinations, while noting that production of Facebook messages was necessary because “[h]er writing product other than her private Facebook messages and the constraints of a single psychological and single physical examination, however, may not fully reveal the frequency, speed, and volume of her writing.” (R. 7). In other words, the trial court held that the best evidence to assess Plaintiff’s alleged cognitive impairment is her Facebook message composition history. 6 Steelcase Inc., 30 Misc. 3d 426, 432, 907 N.Y.S.2d 650, 655-66 (N.Y. Sup. Ct., Suffolk Cnty. 2010) (contents of social media accounts, by their very nature, are relevant to the defense of personal injury cases in which the plaintiff alleges a loss of enjoyment of life or inability to socialize). Federal and state courts nationwide concur in this regard. See, e.g., Orr v. Macy's Retail Holdings, Inc., No. CV416-052, 2016 WL 6246798, at *7 (S.D. Ga. Oct. 24, 2016) (Facebook records subject to disclosure as relevant to parties’ respective physical injury and diminution of quality of life claims); Nucci v. Target Corp., 162 So.3d 146, 151-52 (Fla. Dist. Ct. App. 2015) (social media records are critical tool for evaluation of nebulous physical and loss of enjoyment of life claims in personal injury cases); Higgins v. Koch Dev. Corp., No. 11-cv-81, 2013 WL 3366278, at *2 (S.D. Ind. July 5, 2013) (Facebook records relevant to evaluate plaintiff’s alleged inability to enjoy routine and recreational activities); 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 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 7 plaintiffs in their complaint in this action”); E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010) (“Simply Storage Mgmt.”) (“It is reasonable to expect severe emotional or mental injury to manifest itself in some [social media account] content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress. Further, information that evidences other stressors that could have produced the alleged emotional distress is also relevant.”). Further, Plaintiff’s objection that merely pleading emotional damages should not provide “unfettered disclosure” of social media accounts should be disregarded. (Opp. Brief, pp. 20 and 28). First, Justice Billings ordered only a limited production of Plaintiff’s Facebook account, therefore the objection is irrelevant. (R. 5-9). Second, as set forth above, Plaintiff’s emotional damages are merely one aspect of the totality of circumstances justifying disclosure in this case. Finally, even absent the physical and cognitive impairment allegations, courts order production of social media records when only a party’s alleged emotional distress is at issue. See, e.g., Richards, 100 A.D.3d at 729-31; Kregg, 98 A.D.3d at 1290; Johnson, 95 A.D.3d at 1400; Robinson, 2012 WL 3763545, at * 1; Simply Storage Mgmt., 270 F.R.D. at 435. Accordingly, Defendant has demonstrated the materiality of Plaintiff’s Facebook records to her alleged damages through her testimony and under the prevailing legal standard in New York and nationwide. 2. Whether Defendant’s Initial Demand Is Unduly Broad Is Neither Properly Before The Court Nor Does It 8 Preclude Disclosure Of Social Media Records In This Case As A Matter Of Law To avoid the application of the foregoing legal standard to her testimony and alleged damages, Plaintiff raises an issue for the first time in this appeal and then misapplies the very legal precedent upon which it relies. Namely, Plaintiff argues Defendant’s demand for Facebook records should have been denied as unduly broad or lacking in requisite specificity. (Opp. Brief, pp. 19, 28-33). As an initial matter, Plaintiff’s argument is misplaced because it rests on the inaccurate premise that Defendant seeks wholesale disclosure of her Facebook account in this appeal. However, Defendant did not cross-appeal from Justice Billings narrowly tailored order, which is a far cry from carte blanche disclosure. (R. 5-9). Instead, Justice Billings only ordered production of (a) pre-accident photographs Plaintiff intended to introduce at trial, (b) post-accident 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). This issue was not raised before the Supreme Court or Appellate Division. In opposition to Defendant’s motion to compel, Plaintiff argued Defendant failed to establish materiality without pointing to an evidentiary factual predicate of relevance. (R. 458-462). On appeal, Plaintiff challenged Justice Billings’ order (not Defendant’s demand) as unduly broad, and further argued Defendant failed to establish a factual predicate. (Pl. App. Div. App. Brief, pp. 8-18). At no point did Plaintiff argue that 9 Defendant’s alleged failure to propound a more specific demand constituted independent grounds for denial. Accordingly, this issue is not properly before the Court. Regardless, as reflected in the cases cited by Plaintiff, a broadly worded demand for wholesale disclosure of a social media account does not necessarily warrant dismissal. (Opp. Brief, pp. 28-33, citing, e.g., Lewis v. Bellows Falls Congregation of Jehovah’s Witnesses, Bellows Falls, Vermont, Inc., No. 14-CV-205, 2016 WL 589867 (D. Vt. Feb. 11, 2016); Caputi v. Topper Realty Corp., No. 14–cv– 2634, 2015 WL 893663 (E.D.N.Y. Feb. 25, 2015); Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344 (D. Minn. 2011); Rozell v. Ross-Holst, No. 05 CIV. 2936, 2006 WL 163143 (S.D.N.Y. Jan. 20, 2006)). Instead, , courts will deny the motion in part, but order production of social media account contents relevant to claims of physical or emotional damages. Ibid. In Lewis, as in this case, the plaintiff alleged expansive psychological and emotional damages. 2016 WL 589867, at *1. The plaintiff, in response to a demand for complete access to her Facebook account, produced 51 pages of documents and maintained that all relevant material had been provided. Id. at *1-3. The Lewis court denied the defendant’s request for unfettered access to the plaintiff’s Facebook account. Id., at *2. However, it further ordered production of the social media account’s records that were relevant “[a]s [the plaintiff’s] damages include her 10 emotional distress, loss of enjoyment of life, and prevention from performing daily activities….” Id. After a “cursory” in camera review of 7,089 pages of the plaintiff’s Facebook account records, the Lewis court ordered plaintiff’s counsel to review the account and produce relevant messages, photos, videos, and posts in the following categories: (1) references to sexual or other abuse of Lewis; (2) references to emotional distress or mental health of Lewis; (3) references to treatment Lewis received; (4) references to any alternative potential stressor to Lewis; (5) references that reveal, refer or relate to any emotion, feeling or mental state of Lewis; (6) photographs or videos uploaded by Lewis, or by third parties to her account, depicting Lewis or her activities; and (7) references to any of the Defendants, including Jehovah's Witnesses generally, or events alleged in the Amended Complaint. Id., at *3. In other words, the relief ordered by the Lewis court was far more expansive than Justice Billings’s order, which further belies Plaintiff’s denial that Justice Billings order was narrowly tailored. 2 Similarly, in Caputi, the court denied the defendant’s request for wholesale disclosure of the plaintiff’s Facebook account as overbroad. 2015 WL 893663, at *6- 7. The court went on to hold, though, that Facebook records are relevant and subject to disclosure in respect to claims of emotional and mental distress. Id., at *7 (discussing Reid v. Ingerman Smith, LLP, No. CV 2012-0307, 2012 WL 6720752 2 Rather than analyze the scope of this order, Plaintiff summarily concludes it is not narrowly tailored. (Opp. Brief, p. 27). The order, on its face, limits the scope of disclosure drastically, and Plaintiff’s barebones denial warrants no further consideration. 11 (E.D.N.Y. Dec. 27, 2012); Simply Storage Mgmt., 270 F.R.D. 430). In such circumstances, the court noted, it is appropriate to issue a tailored disclosure order. Id. Accordingly, the Caputi court ordered production of all Facebook records in the pertinent time period that refer to (1) the emotional distress she claimed to have suffered, (2) any treatment related thereto, and (3) “an alternative source or cause of Plaintiff’s alleged distress.” Id., at *8 (citing Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112, 116 (E.D.N.Y. 2013)). The plaintiff in Holter claimed to be suffering from depression and anxiety, and demanded $300,000 in emotional distress damages as a result of disability discrimination and the defendant’s alleged failure to accommodate. 281 F.R.D. at 340. The court denied the request for unfettered disclosure of the plaintiff’s Facebook account, but ordered disclosure of such records relevant to the plaintiff’s “employment with and termination of employment from defendant, along with her mental disability and emotional state…,” which the plaintiff had placed at issue. Id., at 344 (citing Simply Storage Mgmt., 270 F.R.D. at 445). Accordingly, the court ordered production of: any content or communications that reveals or refers to: (1) any emotion, feeling or mental state, including but not limited to any reference of depression, anxiety or mental disability; (2) to any events that could be reasonably expected to produce a significant emotion, feeling, or mental state; (3) defendant, plaintiff’s employment at defendant or termination of employment from defendant; and (4) plaintiff’s search for employment following her termination of employment from defendant. 12 Id. In this case, Defendant argued Plaintiff placed her abilities to socialize, pursue recreational activities, perform mundane functions, and use a computer at all. (App. Brief, pp. 6-12, 22-25). Accordingly, and based on Plaintiff’s admission that she regularly documented her activities via Facebook, Defendant demanded disclosure of her account. (R. 6-12, 22-25). Justice Billings denied the motion in part, but granted it in part by ordering very limited disclosure relevant to her alleged physical, cognitive, emotional, and loss of quality of life damages. (R. 5-9). This is nearly the identical situation and outcome to the cases discussed above, except for two distinctions: (1) Justice Billings’ order is even narrower or more limited than the foregoing, and (2) Plaintiff has not produced any Facebook records and Plaintiff’s counsel has either not undertaken a relevancy review or cannot aver the account does not contain relevant information. See, supra Related to the relevancy issue, Rozell pertained to the narrow issue of “whether, when a plaintiff claims that a defendant has improperly accessed her e-mail account, every communication transmitted through that account becomes subject to discovery.” 2006 WL 163143, at *1. The Rozell defendants argued they were entitled to the emails to see if she referred to the alleged sexual harassment, or alternatively to argue the absence of any such emails proved the harassment never occurred. Id. at *3. Plaintiff’s counsel maintained all relevant emails had been produced, and the court 13 held “the defendants are indeed entitled to argue that the absence of such documentation casts doubt on the plaintiff’s claims.” Id. In this case, Plaintiff’s counsel has never produced any records or even argued the Facebook account does not contain relevant information. Defendant has expressly argued, among other things, there must be a substantial dichotomy between Plaintiff’s pre- and post-accident Facebook usage. (See, e.g., App. Brief, pp. 22-25). Due to Plaintiff’s refusal to provide any pertinent discovery, though, Defendant is unable to set forth the same proof as the defendants in Rozell. It warrants noting that the absence of such content in her Facebook account would actually support Plaintiff’s alleged damages. Arguably, Plaintiff’s continued resistance to any disclosure or affirmation that the account contains no relevant information provides further support for disclosure in this case. Accordingly, even if Plaintiff’s counsel had correctly raised the challenge to the demand as overbroad, that same standard advocated by Plaintiff requires affirmation of Justice Billings’ narrowly tailored discovery order. 3. Defendant Is Not Obligated Or Able To Obtain Similar Information Through Alternative Discovery Methods Plaintiff argues “[d]iscovery can be provided through depositions, investigation, and even surveillance,” which Defendant should be obligated to undertake in order to “issue a narrowly drawn discovery demand for social media information that does not 14 unnecessarily trench upon plaintiff’s legitimate privacy interests.” (Opp. Brief, pp. 25 and 27). Plaintiff ignores that she was deposed and either refused or was unable to testify with particularity as to her post-accident Facebook usage. (R. 244, Pl. Dep. Tr., 250:12-251:10). Further, undergoing the expense and burden of surveillance frustrates the purpose of broad discovery, which disfavors imposing special burdens on parties. See, e.g., Kavanaugh v. Ogden Allied Maint., 92 N.Y.2d 952, 954 (1998). In respect of Plaintiff’s alleged privacy rights, as discussed further below, Plaintiff has no reasonable expectation of privacy sufficient to preclude disclosure. In the current appeal, Defendant also noted that other discovery methods would be unable to recreate the extensive record of material captured in social media accounts, which can “rival the defense litigation tool referred to as a ‘day in the life’ surveillance video.” (App. Brief, p. 34, quoting Forman v. Henkin, 134 A.D.3d 529, 542 (1st Dep’t 2015) (J. Saxe, dissent)). Further, “[i]f 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.” (App. Brief, p. 34, quoting Nucci, 162 So. 3d at 152). Notably, Plaintiff has made no attempt to refute these observations. Finally, it bears noting Facebook provides a simple feature whereby a user can easily download her entire account with a click of the mouse. (See, Facebook, Help 15 Center, “Downloading Your Info,” available at: (last accessed 4/20/17)). Thus, not only is it less burdensome to download, review, and disclose account information, but it is more likely to provide pertinent information than the hit-or-miss tool of surveillance, which can take place years after an injury. As a policy matter, discovery in New York is designed to be cost effective and err on the side of production of relevant materials. Therefore, Plaintiff’s proposition that surveillance or other discovery methods must precede disclosure of social media records should be rejected. B. The First Department Advocates For A Heightened Standard That Has Been Repeatedly Rejected By Other Courts In response to Defendant’s in-depth analysis of the legal and policy grounds for rejecting the First Department’s heightened standard (App. Brief, pp. 25-35), Plaintiff simply summarily concludes there is no heightened standard. (Opp. Brief, pp. 18 and 25). In doing so, Plaintiff ignores the following facts: (1) the First Department in Tapp and Forman expressly limit the factual predicate for disclosure to proof positive from within the account itself; (2) the Second, Third, and Fourth Departments have not adopted this standard; (3) numerous courts in New York and across the nation have expressly rejected this standard as it necessarily precludes discovery in circumstances akin to the current matter (i.e., where the litigant has engaged her account’s privacy settings); and (4) the statistical proof demonstrating both the 16 proliferation of social media accounts and usage of privacy settings. (Compare, App. Brief, pp. 25-35; Opp. Brief, pp. 14-34). In other words, Plaintiff ignores a central issue of this appeal, namely whether the First Department has created a discovery paradox by requiring proof of relevance from within the social media account, thereby empowering a litigant with control over discovery vis-à-vis her privacy settings. Having failed to oppose these arguments, Plaintiff should be deemed to have conceded them. To the extent the Court is inclined to rule on this issue to guide future litigants, Defendant reiterates the First Department’s heightened standard will necessarily preclude relevant information in cases like this and in the majority of cases in the future given that the vast majority of social media users employ privacy features. No other form of discovery is limited in this fashion. As previously noted, intimate, personal materials, such as diaries and wedding videos, are freely discoverable. (App. Brief, pp. 30, 38-39 (citations omitted)). Ultimately, requiring a litigant to provide proof of relevance from within the account itself creates an impossible standard. As a result, courts repeatedly reject the heightened standard and refuse to empower a litigant’s privacy settings with control over discovery. See, Patterson, 88 A.D.3d 617; Giacchetto, 293 F.R.D. 112 (rejects threshold requirement of proof of relevant material before disclosure as such a policy would shield from disclosure relevant material in a private account); Romano, 30 Misc. 3d 426, 907 N.Y.S.2d 650 17 (collecting cases from Canada). See also, Brown v. City of Ferguson, No. 15-CV- 00831, 2017 WL 386544 (E.D. Mich. Jan. 27, 2017) (social media records subject to disclosure regardless of privacy settings); Orr, 2016 WL 6246798, at *7 (rejects heightened standard requiring threshold showing of relevance from within the social media account, particularly when physical and mental condition of parties at issue); Anderson v. City of Fort Pierce, No. 14-14095-CIV, 2015 WL 11251963 (S.D. Fla. Feb. 12, 2015); Simply Storage Mgmt., 270 F.R.D. at 434 (“merely locking a profile from public access does not prevent discovery….”). In response to this litany of cases rejecting the First Department’s heightened standard, Plaintiff failed to provide any cases that reached the opposite result likely because the overwhelming weight of legal authority nationwide (and in Canada) reject limiting the discovery of social media records by requiring a litigant to first prove relevance through access to the account itself. Finally, Plaintiff fails to contest or even address the fact that 80% of Facebook users as of 2015, compared to just 9% in 2012, had engaged their privacy settings. (See, App. Brief, p. 31 (citations omitted)). Were the First Department’s paradoxical standard to become the norm, then social media accounts would not be subject to discovery unless the account holder utilized a “smoking gun” as a profile picture. (See, App. Brief, p. 31). 18 Although Plaintiff ignores this very real concern that relevant information is increasingly likely to be shielded by virtue of self-selected privacy settings, logic, the weight of legal authority, and New York’s policy favoring liberal discovery warrant rejection of the First Department’s heightened standard. C. Disclosure Is Not Precluded By Plaintiff’s Alleged Privacy Interest As A Matter Of Law Plaintiff ignored Defendant’s extensive proof regarding the lack of a privacy interest held by social users in their social media account. As noted at length in Defendant’s appeal, numerous courts in New York and across the country hold that social media users have no reasonable expectation of privacy in their accounts. (R. 35-36). Defendant further observed Facebook’s own policies notify users they have no expectation of privacy, and, further, that the lack of privacy in Facebook information has been widely publicized. (R. 36-38). In addition, physical analogs to social media – diaries and wedding videos – are freely discoverable when the litigant has placed her physical or emotional well-being at issue. (R. 38-39). Finally, Defendant cited that Justice Billings expressly considered Plaintiff’s privacy and issued an order protecting her claimed interests by, for instance, precluding production of embarrassing or intimate photographs, or the content of posts or messages. (R. 39-40). In response, Plaintiff cites to two “commentators” who argue there is some form of privacy interest at stake. (Opp. Brief, pp. 16-17). Plaintiff does not cite to 19 any case holding a right to privacy precludes production of social media records, and fails to address any of the other points above. Accordingly, Plaintiff has conceded that any subjective privacy intent does not amount to a reasonable expectation to privacy that would bar disclosure of social media records. The weight of legal authority supports this conclusion. See, Reid, 2012 WL 6720752, at *2 (even individuals who engage privacy settings have no reasonable expectation of that social media “friends” would keep posts or information private); United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) (subjective privacy intent based on use of privacy settings does not create a reasonable presumption of privacy in social media records); Romano, 30 Misc. 3d 426, 434, 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk Cnty. 2010) (“Indeed, as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate expectation of privacy.”). See also, e.g., Brown, 2017 WL 386544, at *1 (social media content is not privileged, nor is it protected by any privacy right regardless of the user’s subjective privacy intent); Lewis, 2016 WL 589867, at *2 (“Though [plaintiff] limited viewing of her Facebook postings to her ‘Friends,’…which may reflect her intent to preserve information as private, she had no justifiable expectation they would keep them private.”); Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1347 (M.D. Fla. 2014) (“Social media content is neither privileged nor protected by any right of privacy”); Tomkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012) 20 (material posted on “private” Facebook page is “not privileged, nor is it protected by common law or civil law notions of privacy”); Simply Storage Mgmt., 270 F.R.D. at 434 (“a person’s expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery.”); Beye v. Horizon Blue Cross Blue Shield, Civ. No. 06–5337, 2007 WL 7393489 (D.N.J. Dec. 14, 2007) (recognizing a limited privacy interest, at best, that does not preclude disclosure of social media records). Further, Facebook policies expressly warn users that the information shared in their accounts, even with the privacy settings selected, can be freely shared with third- parties. (See, App. Brief, pp. 35-36, citing, e.g., Fawcett v. Altieri, 38 Misc. 3d 1022, 960 N.Y.S.2d 592, 596 (N.Y. Sup. Ct., Richmond Cnty. 2013)). Plaintiff does not argue that she was not aware of this fact or provide legal authority to the contrary. (See, generally, Opp. Brief). Although Justice Billings was not obligated to do so, she considered Plaintiff’s privacy interest and restricted disclosure accordingly. (R. 5-7). Plaintiff does not dispute that the trial court’s order adequately protected her privacy interests. (See, generally, Opp. Brief). As a result, there is no legitimate basis to claim Plaintiff’s privacy rights either preclude disclosure or were not properly considered in this case. 21 II. MANDATORY IN CAMERA INSPECTION IS AN UNNECESSARY AND UNDULY BURDENSOME HURDLE TO DISCLOSURE Plaintiff misapprehends Defendant’s argument by arguing, “skipping in camera review, as defendant requests, would create more litigation, not less, and undermines one of the central theses of the dissent.” (Opp. Brief, p. 34). By contrast, Defendant submitted that trial courts should have the discretion to conduct in camera review, and the First Department erred by creating the impression that in camera inspection of social media records is mandatory. (App. Brief, pp. 40- 42). At no point did Defendant advocate “skipping” in camera review. In fact, Defendant would welcome it in this case, given that Plaintiff’s counsel has failed or refused to undertake a relevancy review of Plaintiff’s Facebook account, choosing instead to resist any production. As a policy matter, Defendant is mindful of the heavy dockets faced by trial courts, and simply seeks an order clarifying, for the benefit of the trial courts, that in camera inspection is not mandatory for the type of discovery sought in this case. Defendant is further mindful of the fact that in camera review is ordinarily reserved for reviewing claims of privilege, not relevance. Collens v. City of New York, No. 03 Civ. 4477, 2004 WL 1395228, *2 (S.D.N.Y. June 22, 2004). Instead, relevance is more appropriately determined by the attorneys in the first instance. Id. See also, 22 Rozell, 2006 WL 163143, at *4 (“counsel for producing party is the judge of relevance in the first instance.”). 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 Plaintiff’s Facebook account. Dated: New York, New York April 26, 2017 WADE CLARK MULCAHY, LLP ____________________________ Michael Bono, 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 23 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 table of contents, and the table of cases and authorities is 5,184.