Decisions of Interest

Robert Carr v. Bovis Lend Lease et al.

Supreme Court, New York County, Index No. 107413/10

In this action, the plaintiff, Robert Carr alleges that while working in the employ of Five Star Electric, he sustained personal injuries to his left arm when he attempted to lift the gate of a man-lift for which he alleges failed to properly open.
Subsequent to his deposition, Malapero & Prisco served upon plaintiff’s counsel with a demand for authorization to obtain access to his social media accounts. Plaintiff’s counsel objected to this demand and contended that the defendants were not able to show that the requested information  actually existed and failed to “establish a factual predicate with respect to the relevancy of the evidence” ( citing McCann v. Harleysville Insurance Company of New York, 78 A.D. 3d 1524, 910 N.Y.S. 2d 614 [N.Y.A.D. 4th Dept., 2010]).

Malapero & Prisco also served a Demand for the Preservation of Electronically Stored Information (such as a SIM card from his Blackberry mobile device)  that was uploaded to any of the social media sites in question, to which plaintiff’s counsel objected, claiming that the demand was excessive and an invasion of privacy.

Plaintiff’s counsel subsequently brought a motion seeking a protective order, vacating or striking the Notice to Admit and the demand for authorizations or, alternately, extending the time to respond to both, as well as a motion seeking a protective order to vacate or strike the Demand for Preservation of Electronically Stored Information. Malapero & Prisco opposed the plaintiff’s motion arguing that the defendants are entitled to the information sought after they obtained photographic evidence from public postings on Facebook contradicting plaintiff’s claims concerning his “debilitating” injuries. Malapero & Prisco, in turn brought a cross motion to compel the requested discovery and an Order directing the plaintiff to preserve the electronically stored information.

Of notable significance, the Court denied plaintiff’s Motion for a Protective Order as to Malapero & Prisco’s demand for social media authorizations and further granted the defendants’ cross-motion compelling the plaintiff to provide a response to the demand for authorizations for access to all social media websites. The Court held that Malapero & Prisco had aptly demonstrated from plaintiff’s public postings on Facebook that the information on the site is relevant to the case and that the “need for access to relevant information outweighs plaintiff’s concerns of privacy”.

Additionally, the Court granted Malapero & Prisco’s cross-motion to compel the plaintiff to preserve Electronically Stored Information stating that since plaintiff never denied ownership of other social media accounts, but claimed to be unable to remember usernames or passwords, plaintiff must preserve the information that was posted to those pages.