Romano v. Steelcase Inc.

• Decision Date: 21 September 2010
• Parties: Kathleen ROMANO, Plaintiff, v. STEELCASE INC. and Educational & Institutional Cooperative Services Inc., Defendants.
• Court: New York Supreme Court

907 N.Y.S.2d 650

30 Misc.3d 426

Kathleen ROMANO, Plaintiff,

v.STEELCASE INC. and Educational & Institutional Cooperative Services Inc., Defendants.

Supreme Court, Suffolk County, New York.

Sept. 21, 2010.

Kelner & Kelner, Esqs, New York City.

Gallagher Gosseen Faller & Crowley, Esqs, Garden City.

John T. Ryan & Associates, Riverhead City.

Orrick Herrington & Sutcliffe LLP, New York City.

JEFFREY ARLEN SPINNER, J.

ORDERED, that Defendant STEELCASE's motion is hereby granted as set forth herein below.

Defendant STEELCASE moves this Court for an Order granting said Defendant access to Plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life.

The present application was brought on by Order to Show Cause. The Court hasreviewed the submissions both in favor of and in opposition to the relief sought, as well as the applicable federal statutory law, specifically the Stored Communications Act, 18 U.S.C. § 2701 et seq., which prohibits an entity, such as Facebook and MySpace from disclosing such information without the consent of the owner of the account ( see, 18 U.S.C. § 2702(b)(3); Flagg v. City of Detroit, 252 F.R.D. 346 [E.D. Mich.2008] ).

SCOPE OF PERMISSIBLE DISCOVERY

Pursuant to CPLR 3101, there shall be full disclosure of all non-privileged matter which is material and necessary to the defense or prosecution of an action. To this end, trial courts have broad discretion in the supervision of discovery, and in determining what is "material and necessary" ( see: Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968]; Andon v. 302-304 Mott Street Assocs., 94 N.Y.2d 740, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000]; Cabellero v. City of New York, 48 A.D.3d 727, 853 N.Y.S.2d 165 (2 Dept. 2008). Within the context of discovery, "necessary" has been interpreted as meaning "needful and not indispensable" ( see: Allen at 407, 288 N.Y.S.2d 449, 453, 235 N.E.2d 430). The "material and necessary" standard is to be interpreted liberally requiring disclosure of "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" ( see: Allen, supra; Andon, supra; Hoenig v. Westphal, 52 N.Y.2d 605, 439 N.Y.S.2d 831, 422 N.E.2d 491 [1981] (pre-trial discovery is 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 public policy in favor of open disclosure ( see: Andon at 747, 709 N.Y.S.2d 873, 878, 731 N.E.2d 589). If the information sought is sufficiently related to the issues in litigation so as to make the effort to obtain it in preparation for trial reasonable, then discovery should be permitted ( see: Allen at 406-407, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430; In re Beryl, 118 A.D.2d 705, 499 N.Y.S.2d 980 [2 Dept. 1986] ). It is immaterial that the information sought may not be admissible at trial as "pretrial discovery extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof" ( see: Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulance Inc., 226 A.D.2d 175, 640 N.Y.S.2d 114 [1 Dept. 1996]; Polygram Holding Inc. v. Cafaro, 42 A.D.3d 339, 839 N.Y.S.2d 493 [1 Dept. 2007] (disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof including materials which may be used in cross-examination")).

INFORMATION SOUGHT FROM INTERNET SITES

Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action ( see: Hoenig v. Westphal, supra ). Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury ( see: Walker v. City of New York, 205 A.D.2d 755, 614 N.Y.S.2d 31 [2 Dept. 1994] ). including a plaintiff's claim for loss of enjoyment of life ( see: Orlando v. Richmond Precast Inc., 53 A.D.3d 534, 861 N.Y.S.2d 765 [2 Dept. 2008]) (in an action to recover damages for personal injuries, records sought were material and necessary to the defenseregarding plaintiff's claim of loss of enjoyment of life); Vanalst v. City of New York, 276 A.D.2d 789, 715 N.Y.S.2d 422 [2 Dept. 2000]; Mora v. St. Vincent's Catholic Med. Ctr., 8 Misc.3d 868, 800 N.Y.S.2d 298 [Sup. Ct. NY. Co. 2005].

Thus, in Sgambelluri v. Recinos, 192 Misc.2d 777, 747 N.Y.S.2d 330 [Sup. Ct. Nassau Co. 2002], an action arising out of a motor vehicle accident, the court held that plaintiff's wedding video taken two years after the incident 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 at her deposition that she can no longer participate in certain activities such as running or horseback riding. Defendant sought a copy of her wedding video on the basis that it might have shown plaintiff in various activities such as dancing, which would be relevant to the claims. Plaintiff objected onthe basis of the personal nature of the video. The court decided in favor of disclosure noting its relevancy to the claim of permanency of injuries. In so finding, the court reasoned that although the video is not a surveillance tape, as contemplated by CPLR § 3101(i), its:

[L]anguage is broad enough to encompass any film, photograph or videotape ... involving a person referred to in paragraph one of subdivision (a), i.e., a party. This is consistent with the general policy of New York courts allowing liberal disclosure. Moreover, the 1993 addition of subdivision (i) only strengthens the argument for open disclosure. Id. at 779, 747 N.Y.S.2d 330, 332 ( internal quotations omitted ).

Like the plaintiff in Sgambelluri, Plaintiff herein also claims she sustained permanent injuries as a result of the incident and that she can no longer participate in certain activities or that these injuries have effected her enjoyment of life. However, contrary to Plaintiff's claims, Steelcase contends that a review of the public portions of Plaintiff's MySpace and Facebook pages reveals that she has an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity. In light of this, Defendant sought to question Plaintiff at her deposition regarding her MySpace and Facebook accounts, to no avail and following those depositions, served Plaintiff with a Notice for Discovery & Inspection requesting, inter alia, "authorizations to obtain full access to and copies of Plaintiff's current and historical records/information on her Facebook and MySpace accounts." Plaintiff has refused to provide the requested authorizations.

Both Facebook and MySpace are social networking sites where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking. Indeed, Facebook policy states that "it helps you share information with your friends and people around you," and that "Facebook is about sharing information with others." ¹ Likewise, MySpace is a "social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and news friends;" and, is self-described as an "online community" where "you can share photos, journals and interests with your growing networkof mutual friends," ² and, as a "global lifestyleportal that reaches millions of people around the world." ³ Both sites allow the user to set privacy levels to control with whom they share their information.

The information sought by Defendant regarding Plaintiff's Facebook and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence. In this regard, it appears that Plaintiff's public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventing Defendant from accessing to Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal 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. Wal-Mart Stores Inc., (06-cv-01958-WYD-MJW, 2009 WL 1067018 [D. Colo. April 21, 2009] ), defendant store sought, via subpoena, production of the content of plaintiffs' social networking sites.⁴ Information contained on the public access areas contradicted plaintiffs allegations regarding the effect of their injuries on their daily lives. When the networking sites refused to provide the information absent plaintiffs' consent or request, defendant moved to compel production and plaintiffs moved for a protective order. Both plaintiffs had claimed physical and psychological injuries as a result of...