Court of Appeals Makes Social Media Network Material Discoverable

Court of Appeals Makes Social Media Network Material Discoverable

By Marc H. Pillinger. A Facebook user can no longer prevent the discovery of private postings on their Facebook page. On February, 13, the Court of Appeals unanimously ruled that the threshold for discovery inquiries is not whether the materials sought are private but instead whether they “are reasonably calculated to contain relevant information.” See Forman v. Henkin —N.Y.3d — Slip Op, 01015 (2018 WL 828101). The Court compares photographs and plaintiff’s private messages to medical records stating “when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records are waived.” In Forman plaintiff alleged she fell from a horse. Plaintiff claimed spinal and brain damages leaving her with cognitive deficits and difficulty communicating. Plaintiff maintained an active Facebook profile, posting photos and messages frequently, prior to her fall. Six months after the fall plaintiff deactivated her Facebook. Defendants moved for an order compelling unrestricted access to plaintiff’s Facebook arguing the records were needed to evaluate her credibility and find evidence that the accident negatively affected plaintiff’s ability to read, write, use a computer or cook. Supreme Court/New York County granted defendant’s motion for photographs posted to Facebook after the accident. The Court stated “photographs of plaintiff engaging in various activities after her injury, particularly any activities she claims she no longer is able to engage in due to her fall,” are probative and discoverable. The Court ordered romantic encounters or nude photos be omitted. The Appellate Division First Department blocked access to most of plaintiff’s post arguing that “unbridled disclosure of such information, based merely on...
Social Media and Heavy Cross Examination from PMT Attorneys, Ernest Bernabei assisted by Lisa Grandner, Deliver Construction Client Defense Verdict.

Social Media and Heavy Cross Examination from PMT Attorneys, Ernest Bernabei assisted by Lisa Grandner, Deliver Construction Client Defense Verdict.

Ernest Bernabei, assisted by Lisa Grandner, obtained a defense verdict before a jury in Atlantic County, New Jersey on January 31, 2018. A substantial amount of time and effort was expended in dealing with serious evidentiary issues arising from the Plaintiff’s conduct at trial. The Plaintiff had a 2.5 million dollar settlement demand and alleged permanent injuries arising from debris striking her vehicle at a construction site controlled by the defendant construction company. Mr. Bernabei was able to use information obtained through social media posts to successfully cross examine the plaintiff and prevent any jury sympathy. Heavy cross examination of plaintiff’s medical and liability experts using past medical records and accident scene photos was also very effective. The jury returned a verdict for the defendant within 15...

Legislature Makes Forum Shopping Easier

By Marc Pillinger. The New York State legislature recently passed an amendment to CPLR 503(a) that makes venue proper when a case is initiated in a “county in which a substantial part of the events or omissions giving rise to the claim occurred.”The New York State legislature recently passed an amendment to CPLR 503(a) that makes venue proper when a case is initiated in a “county in which a substantial part of the events or omissions giving rise to the claim occurred.” The legislature’s unanimous approval of the amendment will affect all future lawsuits that will be filed. It is now easier for plaintiffs to place their case in front of a favorable jury pool. Previously they had to bring their case in “a county where one of the parties resided.” The memorandum in support of the bill claimed venue was “too restrictive.” The prior Venue provisions discouraged forum shopping. Forum shopping is when plaintiffs select a court that gives them the best chance of winning. Now that the legislature has decided to lift those restrictions plaintiffs will flock to friendly courthouses where sympathetic jurors await. The judicial branch of government looks at forum shopping negatively, however, they must interpret the laws as written and the legislature has made it very hard for judges to grant motions to change the venue. The amendments give plaintiffs the ability to choose any venue they please so long as they claim “a substantial portion of the event” occurred in the venue. The legislature provides insight into the malleability of the definition “substantial portion.” The legislature’s accompanying memo provides examples of where venue...

PMT Attorneys Ernest Bernabei and Harminda Morales Obtain Defense Verdict in Hudson County, NJ

On July 25th, 2017, after a 6-day jury trial, PMT partner, Ernest J. Bernabei, assisted by associate, Harminda Morales, obtained a defense verdict in the Hudson County, New Jersey Superior Court. Hon. Jeffrey Jablonski presided over this premises liability matter in which Mr. Bernabei represented Pier 115 Bar and Grill, a commercial tenant in a building owned by co-defendant 115 River Road. Plaintiff alleged that she was struck by an exit door to the side of the main entrance to the lobby, incurring a severe head injury leading to permanent neurological impairment, vision issues, as well as cervical and lumbar injuries. Plaintiff lost consciousness and was taken to the ER after the impact. She presented medical testimony opining the need for lumbar fusion surgery. Her pretrial demand was $3 million dollars. On the first day of trial, plaintiff settled with the co-defendant landlord, thus changing the dynamics and focus of the trial. Plaintiff specifically claimed that employees of our client had caused damage to the “panic bar” of the door through constant misuse. This allegedly caused the door to open very quickly and without warning, leading to the accident. Mr. Bernabei focused on the plaintiff’s lack of direct evidence as to actions of the employees as well as raising serious credibility issues as to plaintiff’s damages. He established her bias towards the defendant restaurant by showing a pattern of complaints by her and her business partner made to the landlord, the health department and various local officials. Through motion practice, he was able to preclude large portions of the plaintiff’s medical expert testimony on causation since it was not...

Court of Appeals:
Important Additional Insurance Coverage Decision

By Marc Pillinger. On June 6, 2017, the Court of Appeals in New York held that when an insurance policy states that additional insured coverage applies to bodily injury “caused, in whole or in part” by the “acts or omissions” of the named insured, the coverage applies to injury “proximately caused by the named insured.” , (N.Y. June 6, 2017) The Court’s majority (one dissent) rejected the argument that an additional insured obligation is owed under this language when the named insured is without fault. In so holding, the Court concluded that the Appellate Division “erroneously interpreted” the applicable policy language to extend coverage for injury only causally linked to the named insured [“but for” causation] yet “wrongly concluded that an additional insured may collect for an injury caused solely by its own negligence, even where the named insured bears no legal fault for the underlying harm.” In rejecting the concept that “caused, in whole or in part” equals “but for” causation, the Court of Appeals further reversed the First Department’s conclusion that the phrases “arising out of” and “caused by” do not “materially differ.” In so doing, the Court of Appeals continues to place the words of the insurance practice. The Burlington decision dealt with coverage issues concerning a project in which New York City Transit Authority (“NYCTA”) contracted with Breaking Solutions, Inc. (“BSI”) to provide equipment and personnel and for BSI to perform excavation work on a New York City subway tunnel. BSI placed CGL insurance with Burlington with an additional insured endorsement covering NYCTA, MTA, and the City as additional insureds “. . . only with...

Culpability and Spoliation:
FRCP Rule 37(E) and New York Law

By Marc Pillinger. Culpability is often a central issue in spoliation claims. In Sarach v M & T Bank Corp., 2016 NY Slip Op 04820 [4th Dept June 17, 2016], a recent Fourth Department case, the Court found that defendant’s violation of a CPLR 3102(c) Order for pre-action disclosure, wherein the defendant promised to preserve surveillance footage, amounted to a “willful failure to disclose.” The Fourth Department, however, disagreed with the lower court that the appropriate sanction was dismissal of the culpable party’s pleadings.  Finding instead that the aggrieved plaintiff was not “prejudicially bereft” of the means to prosecute his action, the Court held that an adverse inference sanction was most appropriate. The dissent in Sarach is noteworthy for its reliance on Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 N.Y.3d 543  [2015] , arguing that the majority failed to follow the Court of Appeals’ approach to  (i) making a finding of spoliation, and (ii) selecting the appropriate sanction. While the dissent agreed that defendant had a duty to preserve the surveillance footage under the first prong of Pegasus[1], it found that the surveillance footage was negligently (not willfully) destroyed under normal business practices.   Instead of an adverse inference charge, the dissent opted for a lesser preclusion sanction that would have prevented the spoliating party from introducing evidence of the video’s content at trial. The dissent’s view that “an adverse inference charge should not be given when…the sole basis for the imposition of a penalty is negligent conduct” is in line with the recently amended Federal Rule 37.  It further raises an important point of divergence between federal...