The standard for granting private social media discovery, particularly of Facebook postings, is now well-established in New York, as set forth in the below recent decisions, and such discovery will be permitted when the legal and factual predicate for directing an account holder’s authorization is demonstrated through inconsistencies and/or contradictions with the account holder’s deposition testimony and/or with his or her public social media postings. However, New York law generally requires that an in camera review for relevance, confidentiality and/or privilege will need to occur prior to a court ordering the production to opposing counsel of a party’s private social media postings.

HMS Holdings v. Arendt,1 a recent commercial division case, explains that, in addition to determining the mens rea of the alleged spoliator, before a spoliation sanction may be granted, in order to determine whether the requested sanction “fits the crime,” courts balance the proportionality of the proposed sanction and will focus on the actual prejudice that the harmed party may suffer in the litigation. Such analysis performed in HMS, after hearing testimony from the parties and computer experts, informed the motion court whether preclusion, an adverse inference, a monetary sanction or the payment of counsel fees is the appropriate spoliation sanction under the specific circumstances.

Facebook Discovery. The First Department in Spearin v. Linmar2 reversed an order as “overbroad” which had directed plaintiff to provide an authorization for access to his Facebook account from the date of the accident to the present, and remanded the matter for an in camera review of plaintiff’s “post-accident Facebook postings for identification of information relevant to plaintiff’s alleged injuries.” The First Department noted:

Defendant established a factual predicate for discovery of relevant information from private portions of plaintiff’s Facebook account by submitting plaintiff’s public profile picture from his Facebook account, uploaded in July 2014, depicting plaintiff sitting in front of a piano, which tends to contradict plaintiff’s testimony that, as a result of getting hit on the head by a piece of falling wood in July 2012, he can longer play the piano.

In Gonzalez v. City of New York,3 the lower court granted defendants’ motion to compel plaintiff to provide authorizations to obtain records from plaintiff’s social media accounts to the extent that an in camera inspection of copies of “all status reports, emails, photographs, and videos posted on plaintiff’s social media site since the date of the subject accident” would be performed to determine which materials, if any, are relevant to plaintiff’s claims and injuries. Plaintiff testified that he had posted only one photograph of his knee on his Facebook account and, when questioned if he had posted any written works or any comments about the accident or his injuries, plaintiff testified that he had not. Defendants then attached the results of an Internet search, which indicated that plaintiff had social media accounts and included several printouts revealing that plaintiff had made “several comments regarding the accident, how the accident happened, his injuries, his recovery, and his activities post-accident.” The court found that such postings “clearly contradicts plaintiff’s testimony,” and that defendants “established that discovery of plaintiff’s social media account will lead, or may reasonably be calculated to lead, to relevant evidence bearing on plaintiff’s claims.”

In Tuzzolino v. Consolidated Edison Co. of N.Y.,4 the court granted defendant’s motion seeking to compel authorizations “permitting the release and completed copies of [plaintiff’s] Facebook account(s) including all records, information, photographs, videos, comments, messages and postings, and shall include the name, username, screen name and email account used to create the Facebook account(s).” Plaintiff testified that he had a “Facebook account at the time of the accident; that he deleted the account a few months prior to his deposition; and that he did not recall whether he deleted posts or pictures from his Facebook account prior to deleting the account.” Defendant submitted to the court a picture from plaintiff’s girlfriend’s Facebook page of plaintiff and her at a social gathering and the picture did not show a cane or any equipment needed to help him walk. Plaintiff further acknowledged that he attended two weddings with his girlfriend after his accident. Defendant asserted that its Internet search also revealed two pictures of plaintiff at a party and out at a bar and the court held that they “contradict plaintiff’s claim that since his accident he is unable to stand for more than 20 to 30 minutes without being in pain and/or that he cannot do anything for himself such as go grocery shopping, do laundry, and cook or clean.”

No Spoliation Sanctions—Deleted Emails Not Relevant. The First Department in AJ Holdings Group v. IP Holdings5 reversed the grant of spoliation sanctions even though it found that “[p]laintiff’s failure to ensure that its principals, who were all involved in the instant transactions, preserved their emails on various accounts used by them, and its failure to implement any uniform or centralized plan to preserve data or even the various devices used by the ‘key players’ in the transaction, demonstrated gross negligence with regard to the deletion of the emails.” The court held that while this “gross negligence gave rise to a rebuttable presumption that the spoliated documents were relevant,” plaintiff “sufficiently rebutted that presumption by demonstrating that the defenses available to defendants all necessarily turned on communications to or with them, not plaintiff’s [deleted] internal communications.” The court noted that since defendants can have only relied on communications they received from plaintiff to establish [the subject] defense,” then the deleted internal emails of plaintiff would not irrelevant.

Spoliation Sanctions—Preclusion Denied, But Mandatory Adverse Inference Granted. In HMS, a trade secret case, plaintiff sought spoliation sanctions against defendants alleging that they intentionally deleted and destroyed electronically stored information (ESI) while under a duty to preserve, as well as an order of preclusion and an adverse inference. The court found that defendants were under a duty to preserve ESI, and thus the issue before it was whether the ESI destruction was intentional or willful, which the court found it was, and thus relevance was legally presumed. The court then had to address whether defendants could rebut that presumption by “establishing that there could not have been any prejudice to the innocent party.” The court had recognized that live testimony from computer experts might assist it in its decision and, after holding an evidentiary hearing, it ruled:

[t]hrough the affidavit of its computer forensics expert and the documentary evidence submitted in support of the motion, HMS has made a prima facie showing that Curtin and Lange engaged in the spoliation of potentially relevant ESI with a culpable mental state during the pendency of this action. Defendants acknowledge the deletion, destruction and loss of certain ESI while under a duty of preservation. However defendants offer various explanations that, if credited, would lend support to their arguments regarding mental state, the relevance of the missing ESI and the sanctions, if any, to be imposed … . As determination of the motion rests, at least in part, on the credibility of defendants’ averments, an evidentiary hearing is warranted.

With respect to one individual defendant’s personal computer, the court found that plaintiff had been “denied the opportunity to determine the full extent to which [defendant] may have misappropriated and/or used [plaintiff’s] confidential business information and adhered to his obligations under the Noncompetition Agreement.” As to that defendant’s external hard drive, the motion court further found:

Even if HMS could determine precisely the full scope of its confidential business information bulk-downloaded by [the defendant] on February 27, 2013, plaintiff has been deprived of valuable metadata that could show when and how the downloaded files were used and any changes that were made. Further, [defendant] concedes that these documents contained information concerning HMS’ “strategy, plans and objectives”—confidential and proprietary information of value to a competitor, even if not of a technical nature.

Then, with respect to a certain laptop, the court ruled that another individual defendant’s “spoliation has made it impossible to determine what other HMS files existed only within [a certain] directory of her [new employer’s] computer and when such files were accessed or modified.”

Plaintiff sought, among other things, an order “precluding any evidence favorable to [the individual defendants], including evidence that they did not breach obligations to HMS or wrongfully acquire, access, distribute or use HMS confidential information.” In addition, plaintiff requested “an adverse inference that the ESI spoliated by defendants is relevant to this litigation, would be unfavorable to defendants and would have supported HMS’ claims against defendants.” The court held that it

must consider the proportionality of the remedies sought by HMS. In particular, the court is concerned that the order of preclusion requested by HMS would be tantamount to granting the broad, permanent injunctive relief requested in its complaint. Without prejudging the ultimate merits of the case, the court believes that such relief, which implicates important public policies of the state, should be ordered only upon consideration of all available evidence, including any evidence that [the individual defendants] did not breach obligations owed to HMS or wrongfully acquire, access, distribute or use confidential HMS information. Indeed, a de facto terminating sanction generally is unwarranted where, as here, the spoliated evidence is not the sole means by which plaintiff can establish its claims.

However, the court then held that given

the willful and deliberate nature of defendants’ misconduct, imposition of a mandatory presumption is warranted. The trier of fact should be permitted to draw the strongest possible adverse inference from defendants’ bad faith and intentional destruction, deletion and failure to produce relevant evidence. Thus, the trier of fact should be instructed as a matter of law that defendants engaged in the intentional and willful destruction of evidence, advised of the extent of each defendant’s proven spoliation, and permitted to presume that the evidence spoliated by each defendant was relevant to this action, would have supported HMS’ claims against the defendant and been unfavorable to the defendant.

The court stated that while the precise wording of the requested adverse inference instruction “can await trial,” issuing such a ruling is not premature as the sanction sought was issued on a pre-trial discovery motion. The court noted that such a ruling would be appropriate where “the spoliation has occurred, and defendants offer no reason to believe that their actions, and the consequences thereof, are anything other than final.” The court also ruled that it was appropriate for it to use such adverse inference in adjudicating HMS’ pending motion for a preliminary injunction. It noted that “the salutary objective of promoting fundamental fairness by restoring balance to the party deprived of relevant evidence is best served by employing an adverse inference at all relevant stages.” Further, the court noted that where a preliminary injunction motion requires a determination of movant’s ultimate likelihood of success, a “mandatory adverse inference at trial certainly is a factor to be considered in making that assessment.” Finally, the court ordered that [the individual] defendants were required to pay HMS the “reasonable attorney fees, costs and expenses incurred as a result of their intentional misconduct, and they shall not seek reimbursement or indemnification of such costs, fees and expenses from [their new employer].”

Endnotes:

1. 2015 N.Y. Misc. LEXIS 1693, 2015 NY Slip Op 50750(U) (Sup. Ct. Albany Co. May 19, 2015).

2. 2015 N.Y. App. Div. LEXIS 5022, 2015 NY Slip Op 05118 (1st Dep’t June 16, 2015).

3. 2015 N.Y. Misc. LEXIS 1587, 2015 NY Slip Op 50712(U) (Sup. Ct. Queens Co. May 4, 2015).

4. 2015 N.Y. Misc. LEXIS 1835, 2015 NY Slip Op 30872(U) (Sup. Ct. N.Y. Co. May 20, 2015).

5. 2015 N.Y. App. Div. LEXIS 4848, 2015 NY Slip Op 04943 (1st Dep’t June 11, 2015).

Mark A. Berman, a partner at commercial litigation firm Ganfer & Shore, cochairs the social media committee of the Commercial and Federal Litigation Section of the New York State Bar Association.

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