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  • Notice to Litigators: Requests for Social Media Must Be Made During Discovery

    Guzman v. Farrell Building Co., et al, No. 06-8462, (N.Y. Sup. Ct. October 3, 2012).

    On October 3, 2012, Suffolk County Supreme Court Justice Hector D. LaSalle reminded litigators of the importance of following proper discovery practice when requesting social media content.

    The case, Guzman v. Farrell Building Co., et al, highlights the consequences for a party who requests access to another party’s Facebook account after they have filed a note of issue and certificate of readiness, which confirms that the party is ready for trial. In Guzman, plaintiff commenced an action against the general contractor, Farrell Building Co., and other related defendants for injuries sustained while working at a construction site. On November 21, 2011, plaintiff filed the note of issue and certificate of readiness indicating the end of discovery in the action.

    Subsequently, Defendant allegedly received, from its investigator, several hundred photographs of Plaintiff that were posted on various social media websites. Defendant then served Plaintiff with a notice to admit, requesting admissions as to when some of the photographs were taken.  Plaintiff, however, rejected Defendant’s request, asserting that discovery was complete and that he would object to the newly discovered photographs during trial. Consequently, the Defendant sought an order from the Court granting it access to any of the computers that Plaintiff may have used to post the photographs as well as access to Plaintiff’s social media accounts.

    In New York, the Uniform Rules for Trial Courts (22 NYCRR) §202.7(a) provides that a motion relating to disclosure must be supported by an affirmation that counsel “has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.” Further, the affirmation must state the “time, place, and nature of the consultation,” the “issues discussed,” and any “resolutions” that came to light from the discussion. If counsel is unwilling to confer then they must “indicate good cause why no such conferral with counsel for opposing parties was held” Additionally, 22 NYCRR §202.21(e) provides, in relevant part, that a party has 20 days after service of a note of issue and certificate of readiness to move to vacate the same. A party seeking additional discovery after the expiration of the 20-day period must demonstrate that “unusual or unanticipated circumstances develop[ed] subsequent to the filing of the note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice.”

    When ruling on whether the Defendant met the requirements of Section 202.7(a) and Section 202.21(e), the court held:

    Here, [Defendant] failed to provide a sufficient affirmation of a good faith detailing its efforts to resolve the issues raised by the motion. Farrell’s affirmation merely states that it attempted to resolve the disclosure dispute but has been unable to do so. It does not indicate the time, place and nature of the consultation between the parties, or that good faith efforts were made to resolve the disclosure dispute.  Moreover, the filing of a note of issue and certificate of readiness denotes the end of the discovery phase of litigation, and [Defendant] has failed to allege, much less demonstrate, that unusual or unanticipated circumstances developed after the filing of the note of issue which requires additional pretrial proceedings to prevent it substantial prejudice.

    Therefore, the Defendant’s motion for an order directing Plaintiff to produce the computers was denied.  As you can see, this case demonstrates the importance of following proper procedure when requesting discovery, especially if that discovery involves divulging social media. Here, the Defendant may have been able to introduce the social media content had Defendant’s investigator found the photographs prior to the closure of discovery.

    If you or your company has any questions or concerns regarding the discovery of social media content, or any other e-discovery related questions, please e-mail Cynthia A. Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

    A special thanks to Sean R. Gajewski, an associate at Cullen and Dykman LLP, for help with this post.