Virano v Daggett
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Virano v Daggett 2016 NY Slip Op 32901(U) September 22, 2016 Supreme Court, Greene County Docket Number: 14-0897 Judge: Charles M. Tailleur Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] CASE#: 2014-897 .. 11/28/2016 DECISION & ORDER Image: 1 of 8 : State of New York Supreme Court: County of Greene HEATHER VIRANO, individually, and WESLEY LEE, an Infant, by his parent and natural guardian, HEATHER VIRANO, Plaintiff -againstZEKE T. DAGGEIT and BRIAN A. DAGGEIT, Defendant Decision &Order # 1<Ml897 Appearances: For Plaintiff: Daniel J. Persing, Esq. Tully Rinckey PLLC 441 New Kamer Road Albany, New York 12205 For Defendant Danielle N. Meyers, Esq. O'Connor, O'Connor, Bresee & First. P.C. 20 Corporate Wood& Boulevard ~ny, New York 12211 (Tailleur, J.) Plaintiff commenced the above-captioned action for personal injury arising from an automobile accident by the fifing the summons and complaint in the Office of the Greene County Clerk on September 15, 2014. The plaintiff was deposed on September 28. 2015 and December 30, 2015. She testified that her doctor had ordered that she remain out of work from the date of the ... accident (May 10, 2014) (tr of deposition of plaintiff at 25, fine 15). However, she indicated that she had discussed returning to work with certain limitations C!lt. at 87, fine . 12-19) and that she had started to apply for jobs with those limitations (kt.. fines 18-19). -1- 11(11111 201'"97 11/2ll/2016 01:48:54 PM [* 2] CASE#: 2014-897 11/28/2016 DECISION & ORDER _:I:_::m:::a~ge::_:::__:2_o::_:f:__::8_ _ _ _ _ _ _ _ _ _ _ _ _- ; She alleged that, as a result of the accident, her left knee was injured (lg. at 68, line 1922); that she is unable to fully bend or extend her left knee (lg. at 74, lines 23-24; at 75, line 1) and that she was in extreme pain (lg., at 79, line 22). She also testified that she had surgery to remove scar tissue from under her kneecap rut. at 89, lines 2-5) and that the surgery was not effective as she continues to have pain numbness, lack of feeling rut. at 94, lines 23-24), rut. at 96, lines 11-15) and much pain in her knee and that her ability to extend her knee has improved "very little" (.ls1. at 89, lines 10-13) and that, from time to time, he knee "gives our limiting her activities (lg. at 97, lines 15-22) Five (5) copies of photographs taken from the plaintiffs Facebook account were marked into evidence at the deposition. The plaintiff testified that exhibit "I" was a photograph of her changing the oil in her car (lg. at 128, line 16) that was taken in the summer of 2016 (Id. at 129, line 8). She also testified that exhibits "J", "K" and "M" were photographs of her, her son and a family friend taking a "nature walk" in Thatcher Park in August of 2015 (.ls1. at 134, line 6-11). Exhibits "J" and "K" were photographs of the plaintiff, taken on the same day at the "nature walk" (Id. at 135, lines 8-9). She explained that the "nature walk" was not strenuous (lg., lines 14-15) and that she stopped about half-way when the ground became "rocky and mountainy" (.ls1, line 21) and that she didn't do the stairs (.ls1., line 23). The plaintiff admitted that exhibit "L• was a copy of a photograph of her riding a dirt bike [hereinafter "dirt bike photograph1 rut. at 131, line 8). The defendant was asked when the photograph was taken. She replied "A couple of months-a couple of years ago (Id., line 12). She asserted that the picture was taken before the automobile accident (lg., line 14). -2- [* 3] CASE#: 2014-897 11/28/2016 DECISION & ORDER Image: 3 of 8 ------ This exhibit has been the source of an ongoing discovery dispute between the parties. On October 2, 2015, the defendants demanded that the plaintiff produce the camera which took the dirt bike photograph and the cell phone or computer that uploaded the photograph to Facebook. The plaintiff objected to this demand. On November 24, 2015, the defendant made a second demand for the dirt bike photograph. After a teleconference, on December 10, 2015, this Court ordered that the plaintiff produce the "native version" of the photograph. On February 11, 2016, the defendant responded that she was unable to produce the photograph, since she could not locate it. On February 16, 2016, the plaintiff served a response to the defendant's demand originally dated October 2, 2015. A second teleconference was held on March 1, 2016 and this Court permitted the defendants to serve a demand for social media information that occurred after the date of the accident. The defense objected to the demand calling it "duplicative, overly broad and without a factual predicate" (letter of plaintiff's counsel attached as exhibit "R" to defendant's motion). Counsel for the defendant then notified the plaintiff that it did not intend to withdraw its demand. Now, the plaintiff, by motion returnable on June 10, 2016, has moved this Court for a protective order "denying the use of any disclosure device meant to inquire into plaintiff's social or electronic media usage, in order to prevent unreasonable annoyance, expense, embarassment, disadvantage or other prejudice to any person and to the Court under CPLR § 3103 (a)" and sanctions (plaintiff's notice of motion, 12). This motion is in response to the defendant's previous demands for disclosure of data from the plaintiff's social media site(s). The defendant opposes this motion. The defendant has, in tum, moved by motion returnable on June 13, 2016, to -3- [* 4] CASE#: 2014-897 11/28/2016 DECISION & ORDER Image: 4 of 8 ' compel the plaintiff to "tum over infonnation relating to her social media activity since the date of the accident, turn over the native or original version of a certain photograph of herself [the]; and submit for eicamination" the device(s) used to take or upload a certain photograph of herself [the dirt bike photograph) (defendant's affirmation in support of the motion to compel at 1, '112). Here the Court is being asked to allow the defendant to examine the plaintiffs social media data "that occurred after the plaintiff's accident [May 10, 2014)" (!st. at 9, 'IJ 25). First, the Court will address the ongoing dispute concerning the production of the dirt bike photograph. The plaintiff claims that the dirt bike photograph was taken before the accident that allegedly caused her knee injury (tr of plaintiff's deposition at 131) but was posted on Facebook on ·a few months" prior to her deposition (Isl. at 131, line 17). The defendants claim that if the photo were taken after the accident, it would demonstrate that the plaintiff has exaggerated the.extent and seriousness of her condition and claimed limitations that do not exist, all of which would undennine her credibility. Therefore, the defendants assert that they are entitled to inspect the camera that took the picture of the plaintiff riding the dirt bike or, alternatively, the computer or phone that uploaded the photo to social media (defendant's affirmation in support of motion to compel at 6, '1113) to detennine if the photograph had been taken after the accident. This Court has previously ordered that the dirt bike photograph be produced in a ".tiff or .pdf format with accompanying load file or in its 'native format" ("So Ordered" letter from Court attached to defendant's motion as exhibit "N"). The plaintiff's counsel has responded, explaining that "despite due diligence and a good faith effort on her. part to -4- [* 5] CASE#: 2014-897 11/28/2016 DECISION & ORDER Image: 5 of 8 . locate said photograph, she has been unable to locate the file" (response to demand for discovery and inspection, f 1, attached to defendant's motion as exhibit "O"). However, where a party alleges that a discoverable item does not exist or, as here, is lost, the unsupported allegations of the party's counsel are insufficient (Modem New Yolk Qjscoyery, § 28·20. ming Fuhs v. Fuhs, 132 AD 2d 824, 824 [3d Dept 1987])). Where a party pleads that a discoverable item is non~xistent, a person with personal knowledge of the facts must execute an affidavit concerning the non~xistence of the item and must swear that the item is lost (Id.). Therefore, this Court GRANTS the plaintiff fifteen (15) days from the date of this Decision and Order to comply with its Order dated December 1, 2015 respecting the dirt bike affidavit or to submit the required affidavit. This applies only to the photograph marked exhibit "L", denominated as the "dirt bike · photograph" in this Decision. In the interim, the defendanfs motion to compel and for sanctions applicable to the dirt bike affidavit are held in abeyance. The remainder of this Decision is limited to a consideration of the defendanfs motion to compel and the plaintiffs motion for a protective order. Here, the Court is being asked to the allow the defendant to examine the plaintiff's social media data "that occurred after the plaintiff's accident [May 10, 2014)" (defense affirmation in support of motion to compel 9, f 25). CPLR 3101 (a) provides that there shall be full disclosure of all evidence 'material and necessary' in the prosecution or defense of an action, regardless of the burden of proof. The words 'material and necessary' are to be interpreted liberally and require disclosure, upon request, of any facts bearing on the controversy which will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason (citations omitted). A party's right to discovery is not unlimited, however, and may be curtailed when it becomes an unreasonable annoyance and tends to -5- [* 6] CASE#: 2014-897 11/28/2016 DECISION & ORDER Image: 6 of 8 harass and overburden the other party (citation omitted]. <Harrison v. Bav!ey Seton HosDital. Inc., 219 AD 2d 584, 584 (2d Dept 1995], iffg ~remand 247 AD 2d 513 (1998]). A court must conduct a two-pronged analysis before it orders the production of data from social media accounts: the Court must determine if the content on the social media account is material and necessary and, second, conduct a balancing test to determine "whether the production of content would result in the violation of the account holder's privacy rights" <Fawcett v. Altieri, 38 Misc 3d 1022, 1024 (Sup Ct Richmond County 2013)). But first, to warrant discovery, the movant must establish a factual predicate by identifying relevant information in the non-movant's Facebook account that "contradicts or conflicts with the plaintiff's alleged restrictions, disabilities, and losses and other claims• (Jaco v. New Voris Urban Oevelooment Coro., 102 AD 3d 620, 620621 [1st Dept 2013]). The defense seeks "Plaintiff's Facebook account data, and more specifically, a complete copy of posts and photographs uploaded to the social media account from September 30, 2014 through the present for each one of the plaintiff's Facebook accounts, including those posts and photographs in which plaintiff was 'tagged' by other Facebook users• AND "Plaintiff's lnstagram account data, and more · specifically, a complete copy of posts and photographs uploaded to the social media account from September 30, 2014 through the present for each one of the plaintiffs lnstagram accounts, including those posts and photographs in which plaintiff was 'tagged' by other lnstagram users· (defendant's second demand for social media information, attached as exhibit ·a· to defendant's motion to compel). The defense describes these requests as being a "narrowly-tailored discovery request" for information "for possible use as evidence-in-chief that plaintiff's injuries are -6- [* 7] CASE#: 2014-897 11/28/2016 DECISION & ORDER Image: 7 of 8 exaggerated or on cross~xamination as to plaintiffs credibility (defense affirmation in opposition, 1128). Clearly, the defense has not established a factual predicate with specificity, much less if it is material and necessary. Their argument is "nothing more than a request to conduct a fishing expedition" <Iilm at 621, citation mll1 internal quotation marks omitted). Setting aside exhibit "L", the dirt bike photograph", the defense has four (4) photographs that were introduced at the deposition. At that time, the plaintiff testified under oath as to the facts and circumstances of those photographs ~tr of deposition at 127, line 23 - 135, line 24). Whether those photographs make the plaintiffs allegations more or less credible is a determination left to the trier of fact. This Court does not belief that a review of all photographs of the plaintiff posted on Facebook and lnstagram that may lead to a photograph or photographs that would enhance the defendant's claims is reasonable or necessary. Furthermore, the defense has not alleged that the information they seek is not available from another source. Therefore, defendanfs motion to compel is DENIED. Plaintiffs motion for a protective order is DENIED since a protective order would effectively bar the defendant from seeking Facebook or lnstagram materials at a Mure date (In McCann y. Har!evsyjlle Ins co. of N.y., 78 AD 3d 1524, 1525 (4" Dept 2010]). The foregoing constitutes the DECISION and ORDER of this Court, the original of which is being transmitted to counsel for the plaintiff. All other papers have been delivered to the Greene County Clerk by Chambers. The signing of this Decision and Order does not constitute entry or filing under CPLR § 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. -7- [* 8] CASE#: 2014-897 11/28/2016 DECISION & ORDER Image: 8 of 8 . DATED: September '::t'Z;--2016 Catskill, New York Papers Considered: Plaintiff's Notice of Motion and Motion for a Protective Order and Sanctions with exhibits Plaintiff's Memorandum of Law in Support of Motion for Protective Order and Sanctions Defendant's Affirmation in Opposition to Motion for Protective Order and Sanctions with exhibits Defendant's Memorandum of Law in Opposition to Plaintiffs Motion for a Protective Order and Sanction Defendant's Notice of Motion and Motion to Compel Disclosure with exhibits Defendant's Memorandum of Law in Support of Defendant's Motion to Compel Plaintiff's Affirmation in Opposition to Defendant's Motion to Compel G:\Greene\Suprerne\Decisions\ -8-
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