Discovery of Social Media

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In Bright v. Coca Cola, 12-cv-234 (EDNY Nov. 3, 2014), an employment discrimination case, the Eastern District of New York granted summary judgment in defendant’s favor. Judge Cogan’s decision is instructive regarding the use of depositions in employment litigation. For non-lawyers/litigators, a “deposition” is (briefly and generally speaking) a witness’s out-of-court testimony that is reduced to…

Read More “Have You Identified All Facts Supporting Your Claims?”
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In Jackson v. OpenCommunications Omnimedia, LLC, the New York State Supreme Court ordered defendants to produce “all documents and notes related to an internal investigation conducted … in connection with the Plaintiff’s complaints of sexual harassment and discrimination.” Defendants resisted production on the ground of privilege. Citing the liberal discovery principles embodied in CPLR 3101, the court granted…

Read More Court Orders Production of Materials Relating to Internal Sexual Harassment Investigation
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In Dominicci v. Ford, a rear-end motor vehicle accident case decided July 3, 2014, the Fourth Department affirmed the denial of State Farm Automobile Insurance Company’s motion to quash plaintiff’s subpoena for documents. State Farm retained a physician to conduct an “independent medical examination”, or “IME”, of the plaintiff on behalf of defendant. Plaintiff then…

Read More Car Accident Plaintiff Entitled to Documents to Show Bias, Motive, or Interest of Insurance Company-Retained Examining Physician, Fourth Department Holds
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In Pecile v. Titan Capital Group, LLC, 2014 NY Slip Op 05053, 119 A.D.3d 446 (App. Div. 1st Dept. July 3, 2014), the Appellate Division, First Department held that the plaintiffs in this sexual harassment lawsuit[1]Redacted. are entitled to production of (1) all documents concerning complaints of sexual harassment and/or retaliation, whether internal or external, made…

Read More Sexual Harassment Plaintiffs Entitled to Discovery Regarding Harassment Complaints, First Dept. Holds
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In Del Gallo v. City of New York (decided June 17, 2014), a tragic personal injury case arising from death and injuries sustained from a falling Central Park tree branch (complaint here), the court ruled on plaintiffs’ motion for a protective order (under CPLR 3103) regarding certain discovery requests made by defendants. While the court discussed various items sought…

Read More Court Orders Limited Access to Plaintiff’s LinkedIn Account in Personal Injury Case
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In Alford v. City of New York, the Appellate Division, First Department unanimously affirmed a trial court’s refusal to allow defendants to obtain or use plaintiff’s medical records relating to prior substance abuse and mental health treatment. Plaintiff sued to recover for back and knee injuries, as well as post-traumatic stress disorder and mental and psychological injuries, allegedly…

Read More Mental Health and Substance Abuse Records Properly Precluded Following Withdrawal of PTSD/Mental Injury Injury Claims in Elevator Accident Case
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In Atchison v. Metropolitan Enterprises, a recent trip-and-fall case, a Brooklyn trial court rejected defendants’ attempt to subject plaintiff to a second Independent Medical Examination (IME). They sought the second examination due to intervening events which, to put it mildly, raised questions as to the first doctor’s credibility. (Note: As a plaintiff’s lawyer, I – as…

Read More Perjury Allegation Against Medical Expert Does Not Justify Second Medical Examination of Plaintiff in Trip-and-Fall Personal Injury Suit
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The New York Court of Appeals (New York’s highest court) recently clarified the standards applicable when a party to litigation seeks information, or discovery, from a non-party. The case, Matter of Kapon v. Koch, arises from billionaire William I. Koch’s lawsuit to recover damages for the alleged sale of counterfeit wine. (The court issued the decision on…

Read More NY Court of Appeals Clarifies Burdens Relating to Nonparty Subpoenas Under CPLR 3101(a)(4)
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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…

Read More Court Determines YouTube Video of Decedent is Not Relevant in Wrongful Death Case
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In Pecile v. Titan Capital Group, the Appellate Division, First Department, ruled on a number of discovery issues relating to, among other issues, plaintiffs’ social media postings. The case made headlines a few years back (e.g., here, here, and here) due to its racy allegations that financier Russell Abrams forced his assistant, plaintiff Danielle Pecile, to get prints of honeymoon…

Read More Court Rules on Discovery Issues in “Topless Wife Photo” Sexual Harassment Case Against Titan Capital and Russell Abrams
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