Roman v. Steelcase Inc

8/8/2019 Roman v. Steelcase Inc.

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SUPREME COURT OF THE STATE OF NEW YORKIAS PART X X I - COUNTY OF SUFFOLKP RE S E NT :

HON. JEFFREY ARLEN SPINNERJustice of the S uprem e Court 1-----------------------------------......................

j KATHLEEN ROM ANO,IIII

II II plaintiff , j INDEX NO.: 2006-2233I - against -I I MOTION SEQ. N O . : 005- M Gi STEELCASE INC an d EDUCATIONAL & j ORIG. MOTION DATE: 07/29/09

1 FINAL SUBMIT DATE: 07/07/09INSTITUTIONAL COOPERAT IVE SERVICES INC, jDefendants. 1IIL - - - - - - - - - - - - - - - - - _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~UPON the following papers numbe red 1 to 6 read on this Order to Show Cause:

Plaintiffs Opposition (Pa pers 3-4);i t is ,

Defendant STEEL CAS Es Order to S how Cause (Papers 1-2);

Non-Party FACE BOO Ks Opposit ion (Papers 5 -6 ) ;

ORDERED, that Defendant ST EEL CA SEs motion is hereby granted as set forth herein below.Defendant ST EEL CA SE moves this Court for an Order granting said Defendant access to Plaintiffscu ix nt and historical Facebook and M ySpace pages and accounts, including all deleted pages andrelated information upon the grounds that Plaintiff has placed certain information on these socialnetworking site s which are believ ed to be inconsistent with her claim s in this action concern ing theextent and nature of her injurie s, especi ally her claims for loss of enjoyment of life.The present application was brought on by Order to Show Cause. The Court has reviewed thesubmissions both in favor of and in o pposition to the relief sough t, as well as the applicable federalstatutory law, specifically the Stored Com munications Act. 18 U.S .C.( ][ 701 e t s o q . , which prohibitsan entity. such as Faceb ook and M ySp ace from disclosing such inform ation w ithout the consent oft h c owner olthc account (.wo, 18 U.S.C. I[ 2702(b)(3);Flagg v City qfDetroit, 2.52 FRD 3.52 [E DMich 2008)).SCOPE OF PERMISSIBLE DISCOVERYPursLimt to CPLR 3101, there shall be fu l l disclosure of all non-privileged matter w hich is materialand necessary to the defense or prosecution of an action. To this end, trial courts have broaddiscretion in the supervision of disc ove ry, and in determining w h a t is mater ial and necessary ( . s e r :Al len v Cr-owell-Collier Pu b C o . 21 N Y 2 d 403 ll9681; A n d o n v 302-304 Mot t Street Assocs , 94N Y 2 d 730 12000);Cabellero v City o f N e w York ,48 AD3d 727 ( 2 Dept 2008). Within the contextofdiscovery, necessary has been interpreted as meaning needful and not indispensable ( s c ~ :Alleri at 407, 453). The matcrial and necessarystandard is to be interpr eted liberally requiring

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disclosure of any facts bearing on the controversy which will assist preparation for trial bysharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason( s e r : Allerz, siiprci; Aridoii, siipra; Hoeniiig v Westplzal, 52 NY2d 605 [19811 (pre-trial discoveryis to be encouraged, limited only by the test of materiality of usefulness and reason)).Each discovery request is to be decided on a case-by-case basis keeping in mind the strong publicpolicy in favor of open disclosure (soc.: Aiidoii at 747, 878). If the infomiation sought is sufficientlyrelated to the issues i n litigation so ;is to make the effort to obtain i t in preparation for trialreasonable, then discovery shou ld be perm itted ( s e e :Allen at 406-407 .452; 112 re Beryl, 118 AD2d70 5 [2 Dept 19861). I t is immaterial that the information sought may not be admissible at trial aspretrial discovery ex tend s not only to proof that is adm issible but also to matters that may lead tothe disclosu re of admis sible proof (see: Twenty Four Hour Fuel Oil Corp v Hun ter AmbulaizceIizc, 226 AD2d 175 [ 1 De pt 19961;Polygr am H olding Znc v Cafaro, 42 AD3d 339 [1 Dept 20071(disclosure extends not o nly to adm issible proof but also to testimony or docume nts which m ay leadto the disclo sure of adm issible proof includ ing materials which m ay be used in cross-examination)).INFORMATION SOUGHT FROM INTERNET SITESPlaintiffs who place their physical condition in controv ersy, may not shield from disclosure materialwhich is necessary to the defen se of the action ( see:Hoening v Westphal ,szipra). Accordingly, i nan action seeking damage s for personal injuries, discovery is generally permitted with respect tomaterials that may be relevant both to the issue of dam ages and the extent of a plaintiffs injury (see:Wulker v City of lvew York, 205 AD2d 755 [3Dept 19941) including a plaintiffs claim for loss ofen.joyment of life (sw: Orlando v Richmond Precast Ziic, 53 AD3d 534 [2 Dep t 20081 ( in an actionto recover damag es for personal in juries, records sought were material and necessary to the defenseregarding plaintiffs claim of loss of enjoymen t of life); VaizaZst v City u f N e w York, 276 AD2d 789[2 Dept 2000);Mora v St Vinceiits Catholic Med C tr, 8 Misc3d 868 [Su p Ct N Y C o 2005).Thus , in Sgnr.nbellriri v Reciizos, 192 Misc2d 777 (Sup Ct Nassau Co 2002). an action arising outof a motor vehicle accident, the court held that plaintiffs wedding video taken two years after theincident was clearly relevant to the claim of permanency of injuries. As a result of the accident,plaintiff alleged that she sustained permanent injuries to her neck and back, and testified a t herdeposition that she can no longerpar-ticipate n certain activities such as runn ing or horseback riding.Defendant sought a copy of her wedding video on the basis that i t might have shown plaintiff i nvarious activities such as danci ng, which would be relcvant to the claims. Plaintiff objected on thehasis o f the personal nature of the vidco. Th e court decided in favor of disclosure noting itsrelevancy to the claim of permanency ofinjurie s . In so findin g, the court reasoned that although thevideo is not a surveillance tape. as contemplated by CPLR 9 3lOl(i), its :

II,jangu:igc is hi-oad enough lo en co m px s any film, pliotogr-apt1o r vic lco~ipc. . involving ;Iperson I-cferred t o in paragraph one of subdivision ( a) , . e . . a par ty. 1 hi s is consistent withtlic general policy of N c w York courts allowing liberal disclosurc. Moi-cover, the 199.3x l c i i r i o n o f subdivision ( i ) only strengthens the argument for open ciisclosure. I ( / . at 779, 312( ii t 1- 1 I ci 1 q io ( i t ion Y 01 1 I itt c 1).

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Like the plaintiff i n Sgunzbelluri, Plaintiff herein also claims she sustained permanent injuries as ;Iresult of the incident and tha t she can no long er participate i n certain activities or that these injuriesIiave effected her enjoym ent of life. How ever, contrary to Plaintiffs claims. Steelcase contends thata review of the public port ions of Pl aintiff s M ySp ace and Facebook pag es reveals that she has anactive lifestyle and has tra veled to Florida and Pennsylvania during the tim e period she claims thather injuries proh ibited such activity. In light of this, Def enda nt sought to question Plaintiff at herdeposition re,oarding her MySpace and Facebook accounts, to no avail and following thosedepositions, served Plaintiff with a Notice for Discovery & Inspection requesting, iriter d i u ,authorizations to obtain full access to and copies of Plaintiffs current and historicalrecords/information on her Fac eboo k and MySpace accounts. Plaintiff has refused to provide therequested a uthorizations.Both Facebook and M ySpa ce are social networking sites where people can share information abouttheir personal lives, including posting photographs and sharing information about what they aredoing or thinking. Indeed, Facebook policy states that i t helps you share information with yourfriends and people arou nd YOU. and that Facebook is about sharing information with others.Likewise, MySpace is a social netw orking service that allows M emb ers to create unique personalprofiles online in order to find and com municate with old and news friends; and, is self-describeda s an online comm unity w here you can share photos, journ als and interests with your growingnetwork of mutu al friends, a nd , as a global lifestyle portal that reaches m illions of people aroundthe world.3 Both sites allow the user to set privacy levels to control with whom they share theirin form at on.The information sought by D efendant regarding Plaintiffs Facebook and M ySpace accounts is bothmaterial and necessary to the defense of this action a n d o r could lead to admissible evidence. In thisregard. i t appears that Plaintiffs public profile page on Facebook sh ow s her smiling happily in aphotograph outside the confines of her home despite her claim that she has sustained permanentinjuries and is largely con fine d to her house and bed. In light of the fact that the public portions ofPlaintiffs social networking sites contain material that is contrary to hci- c la ims and depositiontestimony, there is a reason able liltelihood that the private portions ofher sites m a y contain furthcrevidence such as information with regard to her activities and enjoym ent of life, all of which arcmaterial and relevant to the defense of this action. Preventing Detendant 11-omaccessing toPlaintiffs private postin gs on Facehook and M ySpacc would be in direct contravention to the liberal

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disclosure policy in New York State.Although there is no New York case law directly addressing the issues raised by this application,there are instructive cases from other jurisdictions. Recently, in Ledbetter v Wcrl-Mart Stores lrzc,(06-cv-01958-WYD-MJW [D Colo April 21, 2009]), defendant store sought, via subpoena,pi-oduction of the content of plaintiffs social network ing sites. Informa tion conta ined on the publicaccess areas contradicted plaintiffs allegations regarding the effect of their injuries on their dailylives. When the networking sites refused to provide the information absent plaintiffs consent orrequest, defendant m oved to compel produc tion and plaintiffs m oved for a protective order. Bothplaintiffs had claimed physical and psycholo gical inju ries as a result of the accide nt which gave riseto lawsuit. By Order dated April 21 ,2 00 9, Magistrate Judge W atnabe denied plaintiffs motion andheld that the information sought by the subpoenas was reasonably calculated to lead to thediscovery of admissible evidence and is relevant to the issues in the case.Likewise, in Ledzic v Rorituiz, 2009 CarswellOnt 84 3 (February 20, 2009), a matter pending in theSuperior Court of Justice, O ntario, Canad a, defendant also requested production of the plaintiffsFacebook pages, including, private pages. Plaintiff claimed that as a result of injuries allegedlysustained in a car accident, his enjoyment for life had lessened. Cana dian law requires that eachparty disclose every documen t relating to any matter in the action over w hich he has possession orcontrol absent a clai m of privilege. Plaintiff had failed to disclose the informa tion which defendantonly learned about follow ing a defense psychiatric examination. After only being able to access thelimited portions of plaintiffs public profile pag e, defendant sought an order requiring productionof all site mat erials a s well as preservation of the materials. The decision denying the request wasreversed on app eal, with the appe llate court disagreeing that defendant was on a fishing expedition.In this regard, Judge B rown noted that i t was beyond controversy that 21 persons Facebook pagesmay contain relevant docum ents (a t y[ 23); that other Canadian cases had permitted into evidencephotographs posted on a persons Facebook page show ing them engaged in activities despite theirclaim to the contrary; and, i t 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 relevant information exists on their limited-access p rivate pages (at I[ 36). In decidin g to permitthe examination into the private Facebook profile, the court set forth:

To permit ;I party claim ing very substantial damages for loss ofenjoyment o f life to hidebehind sclf-set privacy controls on ;I website, the primary purpose 01 which is to enablepeople t o share information about how they lead their social lives, risks depriving theopposite party ofaccess to material that may be relevant to ensuring a Jait- t r ia l .

(.WP r i l s o ; K e n t v I,nverdier.e. 2009 Can1,Il 16711 (ON S.C.,April 13, 009) ( a s plaintiffasset-tedthat acci dent clisfigured her and le ssened her enjoy me nt of life. any photos on Fa cebook or M ySpaceshowing her i n he:ilthy stat e, eii-joying life. wo uld be I-elevant);Rislzoy v Miri ichiel lo, 3009 RCSC358 (CanLlI. April 7 , 2009) (defendants motion f o r production of plaintiffs compu ters hat-drive

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so i t could analyze how m uch tim e plaintiff spent on Facebook granted as the information soughtwas relevant to the issues in the case); Goodridge v King, 2007 CanLII 5 1 161 (O N S . C .October 30,Z007) ( in action i n which plaintiff claim ed various injuries including loss of enjoym ent of life anddisfigurement following a car accident, photos posted by plaintiff on her Facebook account wasevidence to the contrary, show ing her socializing and datin g); Kourtesis v H o r i s , 2007 CanLII 39367(ON S . C . September 24. 2007) (i n proceeding concerning costs, court noted that during trial,Facehook photos of plaintiff were important elem ent of case; apparently plaintiff testified that sh eno longer had a social life because of her injuries, yet the photographs taken after the accident,showed her a t a party).T h u s , t is reasonable to infer from the limited postings on Plaintiffs public Facebook and M ySpaceprofile pages, that her private pages may contain materials and information that are relevant to hercla ims or t ha t may lead to the disclosure of admissible evidence , To deny Defendant an opportunityaccess to these sites not only w ould g o against the liberal discov ery policies of New Y ork favorin gpre-trial disclosure, but w ould c ond one Plaintiffs attempt to hide relevant information behind self-regulated privacy settings.PLAINTIFFS PRIVA CY CO NCERNSProduction of Plaintiffs entries on her Facebook and M ySp ace accounts would not be violative ofher right to privacy, and an y such conce rns are outweighed by D efend ants need for the inform ation.The Fourth A mend ments right to privacy, protects p eop le, not places (,see: Katz v United States,389 US 347 [ 19671) (W hat a person knowingly expo ses to the public, even in his own home oroffice, is not a sub ject of Fourth A men dmen t protection.) In determ ining whether a right to privacyexists via the Fourth Amendment, courts apply the reasonableness standard set forth in th econcurring opinion of Justice Harlan in K n t z : first that a person have exhibited an actual(sub.jective) expectation of privacy and , secon d, that the expecta tion be one that society is preparedto recoznizc ;is reasonable. I d . at 361, 5 16 (Harlan, J . conc im- ins) (internal quotations omit ted).New York courts have yet to address w hether there exists a right to privacy regarding what o ne postson their on-line social networking pages such ;is Facebook and MySpace. However, whether onehas ;I reasonable expectation of privacy i n internet postings or e-mai Is that have reached theirrecipients has been addr essed by the Sec ond Circuit, which has held that ind ividuals may not enjoysuch ;in expectation of privacy ( s e e ; U S v LiJdzitz, 369 F3d 173 ,2004 U.S . App. LEXIS 907 1 12 C ir2004) citing Guest v L e i s , 255 F3d 335 [6 Cir 20011):

In N eu Y o I ~ ,hci-c is no comm on la w right to pi-ic:icy SOP.Co/-d(~roN Y P I ~ o l d i ~ ~ q ~ ,1I / i ( , 2 0 M I X 3d 1 108A. 866N Y S 2d 90 (Sup Ct NY C o ZOOS )

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Users would logically lack a legitimate expectation of privacy in materials intended foi-publication or public posting. They would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at th is mome n t, th e e -ma il er ~ ~ o u l de analogousto a letter-writer whose expectation of privacy ordinarily terminates upon delivery of theletter.

Likewise, whether one has a reasonable expectation of privacy in e-m ails and other writings t h a thave been shared w i t h others. includin g entries on Facebook and MySp ace. has been addre ssed bythe United States District Court of New Jersey, which ordered such entries produced in Beye vHurizun Blue Cruss Blue SlzieZdufNew Jersey, 06-5337 (D NJ December 14 ,200 7) . In this regard,the court stated that [ tlh e privacy conc erns are far less wh ere the beneficiary herself chose todisclose the information. As to the entries which had not been shared with oth ers, they were to bepreserved. At issue in Beye , were on-line journals and diary entries of minor children who had beendenied health care benefits for their eating disorders (set. also: Murenu v I-lnizford Seiztiizel Zizc,2009 Cal App. LEXIS [Ct App. 5 Dist 2 009) (no person would have reasonable expectation ofprivacy where person took affir mat ive act of posting own writing on My Space , mak ing i t availableto anyone with a computer and opening i t up to public eye);Dexter vDex ter , 2007 Ohio App LEXIS2388 (Ohio Ct App Portage Co 2007) (no reasonable expectation of privacy regarding MySpacewritings open to public view).Indeed, as neither Facebook nor M ySpace guarantee complete privacy, Plaintiff has no legitimatereasonable expectation of privacy. In this regard, MySpace wai-ns users not to forget tha t theirprofiles and My Space Forums are public spaces, and Facebo oks privacy policy set forth , inter uliri,t h a t :

You post User Content . . . on the Site at your own risk. Although we allow you to setpri vacy op tion s that lim it access to your page s, please be aware that no secui-i y m easures areperfect or impenetrable.

Further t h atWhen you use Facebook , certain information you post or shai-e with third parties (e .g., 21friend or someone in your netw ork), such as personal information, comm ents, messages,photos, videos . . . may be shared with others in accordance with the privacy settings youselect. All such sharing of inform ation is done at youi- own ris k. Please keep in mind t h a ti f you disclose personal inlormation i n you profile or when posting co mm ents. messages,photos , videos, Marketpli1ce listing or other items. this information may become publiclya v a i a b e .

MySpace General Tips -h t t p ~ / / w ~ ~ ~ w . n i y s p a c e . c o i n d e x . c f i n ? f r s e a c t i o n = c n i seiwp~~ge8rplacement=\afety_pagetipslistvisited June 18, 2009).

Facebook Pnnc1p 1es-e ffec 1vc a s November 26, 2008h t t p / /www.lacehool~ .com/pol icy .php.as t viewed June 18. 2009.

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Thu s. when Plaintiff created her Facebook and M ySpace accou nts, she consented to the fact t ha t herpersonal information would be shared with others. notwithstanding her privacy s et ti np . Indeed, thatis the very nature and purp ose of these social netw orkin g sites else they would ce ase to exis t . SincePlaintiff knew that her inform ation may beco me publicly availa ble, she cannot now claim that shehad a reasonable expectation of privacy. A s recently set forth by commentators regarding privacyand social networking sitcs, given the millions of users, [iln this enviro nm ent, privacy is no longergrounded in reasonable expecta tions, but rather in so me theoretical protocol better known as wishfulthin king . Further, Defen dants need for access to the information outweighs any privacy concerns that maybc voiced by Plaintiff. Defendant has attempted to obtain the sought Lifter information via othermeans e .g ., via deposition and notice for discove ry, however, these have proven to be inadequatesince counsel has thwarted Defendants attempt to question Plaintiff in this regard or to obtainautho rizatio ns from Plain tiff for the release of this inform ation. T he matei-ials nc ludin g photogi-aphscontained on these sites may be relevant to the issue of damages and m ay disprove Plaintiffs claims.Without access to these sitcs, Defendan t will be at a distinct disadvantage in defending this action.ORDERED, that Defen dant STE ELC AS Es motion for an Ord er granting said Defendant accessto Plaintiffs current and historical Facebook and M ySpace pages and accounts, including all deletedpages and related information, is hereby granted in all respects; and i t is furtherORDERED, that, within 30 days from the date of service of a copy of this Or der, as directed hereinbelow, Plaintiff shall deliver to Counsel for Defendant STEELC ASE a properly executed consentand authorization as may be required by t h e operators of Facebook and MyS pace, permitting saidDefendant to gain access to Plain tiffs Facebook and MyS pace records, including any recordspreviously deleted or archived by said op erators; and i t is further.ORDERED, t ha t Counsel lor the moving party herein is hereby directed to serve a copy of & isorder, wi t h Notice of Entry, upon Counsel for all the remainin g phi-ties and Non-Pal-ty FA CE BO OK ,w i t h i n twenty ( 2 0 ) days of the date this order I S entered by the Suftolk C ounty Clerk.Dated: Riverhe ad, New YorkSeptember 21, 2010

I; IN A ~ 11 SPO S T I0NJ S C A N

i-OY. JEFPREY ARLKN SP Id i 1k

J N O N - F I N A L T)ISPOSIIION110 NO T SCAN

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0

Kelner & Kelner Esqs140 Broadway, 37th FloorNeu) Y o r k , New York 10005

Gallagher Gosseen Faller & Crowley Esqs1010 Franhlin Ave nue, Suite 40 0Garden City, New York 1153 0

J o h n T Ryan & Associates633 East Main Str eet, Suite 3Riverhead, New York 11901

Oi-rick Herr ingto n & Sutcliffe LLP66 6 Fifth AvenueNew York, New York 10103-0001

M ySpace407 North Maple Dri veBeverly Hills, Califoi-nia 9021 0

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Roman v. Steelcase Inc