In a recent decision in the wrongful death case of Reid v. Soults et al. (hat tip: Eric Turkewitz), a state trial court denied defendants’ motion to compel plaintiff to comply with their demand for discovery and inspection regarding a YouTube video depicting the decedent, and to compel a third party (the decedent’s brother, who publicly posted the video) to produce an authorization for his YouTube account.
According to defendants, the video – which has since been made private or taken offline – “contains clips of the decedent drinking, smoking, and using guns.” They claimed that it was “relevant to the wrongful death claim, decedent’s life expectancy, [and] the issue of damages.” Plaintiff argued that the video was not relevant to the claims in the case, and that defendants were “improperly” seeking it “for purposes of attacking the decedent’s character.”
The scope of disclosure in New York state court litigation is defined by New York Civil Practice Law and Rules (CPLR) section 3101. As explained by the Appellate Division, Second Department (which issued an earlier order in this case):
CPLR 3101(a) is to be liberally construed to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. [T]he party seeking discovery must first satisfy the threshold requirement that the disclosure sought is material and necessary, whether the request is directed to a party (see CPLR 3101[a]) or a nonparty (see CPLR 3101[a]). In addition, a party seeking disclosure from a nonparty must set forth the circumstances or reasons why disclosure is sought or required from such nonparty witness. [M]ore than mere relevance and materiality is necessary to warrant disclosure from a nonparty.
Following an in camera review of the video, the trial court concluded that the 5 minute, 15 second video – which it characterized as “a compilation of undated video clips depicting the decedent shooting a gun, drinking, smoking, cursing, interacting with women, and dancing with commentary by the unidentified person taking the video” – “is not relevant to the health and life expectancy of the decedent, the issue of pecuniary loss, or the claims in this case.”
While this evidence was deemed not relevant in this case, parties to litigation – particularly plaintiffs claiming that the defendant’s wrongful conduct has prevented them from engaging in certain activities – should be wary about posting things that may harm their case. (For various examples of how these issues are playing out in the courts, click here, here, here, here, here, and here.)