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i Od DV INDEX NO. 037287/2012
UD) U 0 OUN 06
NYSCEF D0C. NO. 51 RECEIVED NYSCEF 12/06/2016
v
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
tenn ann nn ee en tn een)
MICHAEL PERKOWSKI,
Plaintiff, AFFIRMATION IN
OPPOSITION TO
-against- CROSS-MOTION
AND IN FURTHER
SAINT ANTHONY'S HIGH SCHOOL, BRENDAN SUPPORT OF MOTION
ROSE, RICHARD ROSE, and PATRICE ROSE,
Index No. 37287/12
Defendants.
mon nan ne en nn en eee
Jeffrey A. Nemerov, an attorney admitted to practice in the courts of this state,
affirms under the penalties of perjury that the following is true:
1. lam amember of Segan, Nemerov & Singer, P.C., attorneys for plaintiff, Michael
Perkowski, and | am familiar with this case. | make this affirmation (1) in opposition to the
cross-motion of Defendants Brendan Rose and Richard Rose, which seeks a protective
order and an order compelling plaintiff to provide discovery, and (2) in reply to those
defendants’ opposition to plaintiff's motion for an order (a) compelling Defendant Saint
Anthony’s High Schoo! to produce its records pertaining to Defendant Brendan Rose, and
(b) compelling Defendant Brendan Rose to furnish authorizations enabling plaintiff to
obtain his records from all high schools he has attended.
DEFENDANTS ARE NOT ENTITLED TO UNLIMITED
ACCESS TO PLAINTIFF’S SOCIAL MEDIA RECORDS
2. The moving defendants seek unlimited access to Mr. Perkowski’s accounts with
Facebook, Twitter, Instagram, and Pinterest, and “any other social media site utilized by
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the plaintiff from the date of loss’ to the present.” (Cr-Mot. Ex. C.) The request for an
authorization addressed to Pinterest should be denied because defendants have failed to
show that plaintiff has ever had such an account. Although they have annexed portions
of his deposition transcript to their cross-motion (Cr-Mot. Ex. F), none of those pages
contains testimony about Pinterest, nor did Mr. Perkowski mention having such an account
at any time during his deposition.
3 Defendants’ request for authorizations addressed to Facebook, Twitter,
Instagram, and “any other social media site utilized by the plaintiff " should also be denied.
In determining whether information sought is subject to discovery, the test is one of
usefulness and reason, and it is incumbent on the party seeking disclosure to demonstrate
that the method of discovery sought will result in the disclosure of relevant evidence or is
reasonably calculated to lead to the discovery of information bearing on the claims.
Forman v. Henkin, 134 A.D.3d 529, 22 N.Y.S.3d 178 (1 Dep't 2015). Defendants have
made no such demonstration.
4. Courts have repeatedly declined defendants’ requests for access to a personal
injury plaintiff's social media accounts. In Forman v. Henkin, supra, the court held that
[t]he fact that plaintiff had previously used Facebook to post pictures of herself or to send
messages is insufficient to warrant discovery of this information.” The court so held even
though, like Mr. Perskowski, Ms. Forman claimed to have sustained cognitive injuries. The
court instead directed the plaintiff to provide only those photographs of herself posted on
' Plaintiff assumes that by using the undefined term “date of loss,” defendants
meant the date that Defendant Brendan Rose assaulted him.
2
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Facebook that she intended to use at trial. Mr. Perkowski would have no objection were
this Court to issue such an order. As the Forman court concluded:
Taken to its logical conclusion, the dissent's position would allow for
discovery of all photographs of a personal injury plaintiff after the accident,
whether stored on social media, a cell phone or a camera, or located in a
photo album or file cabinet. Likewise, it would require production of all
communications about the plaintiff's activities that exist not only on social
media, but in diaries, letters, text messages and emails. Allowing the
unbridled disclosure of such information, based merely on speculation that
some relevant information might be found, is the very type of “fishing
expedition” that cannot be countenanced. Contrary to the dissent's view,
there is no analogy between the defense litigation tool of surveillance video
and the wholesale discovery of private social media information. The
surveillance of a personal injury plaintiff in public places is a far cry from
trying to uncover a person's private social media postings in the absence of
any factual predicate.
See also Pecile v. Titan Capital Group, 113 A.D.3d 526, 979 N.Y.S.2d 303 (1% Dep’t 2014)
(‘Regarding defendants’ demand for access to plaintiffs’ social media sites, they have
failed to offer any proper basis for the disclosure, relying only on vague and generalized
assertions that the information might contradict or conflict with plaintiffs’ claims of
emotional distress”); Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16 (1" Dep't 2011)
(With respect to defendant’s demand for access to plaintiff's social networking accounts,
no showing has been made that ‘the method of discovery sought will result in the
disclosure of relevant evidence or is reasonably calculated to lead to the discovery of
information bearing on the claims”). Defendants’ argument that Mr. Perkowski’s social
media accounts may contain “evidence relevant to the claims asserted in this case”
(Attorney's Aff., {J 17) has been specifically rejected by the Appellate Division. See T: pp
v. New York State Urban Development Corp., 102 A.D.3d 620, 958 N.Y.S.2d 392 (1 Dep't
2013) ("Defendants’ argument that plaintiff's Facebook postings ‘may reveal daily activities
3 of 6
that contradict or conflict with’ plaintiff's claim of disability amounts to nothing more than
a request for permission to conduct a ‘fishing expedition”).
5. The three decisions cited by defendants are not dispositive. In Richards v. Hertz
Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2™ Dep’t 2012), one of the two plaintiffs?
testified that she had sustained injuries impairing her ability to play sports, and causing her
to suffer pain that was exacerbated in cold weather. In searching portions of her Facebook
profile that were not blocked by privacy settings, the defendants’ attorneys discovered
Photographs depicting her on skis in the snow. The court concluded that the Facebook
Profile contained a photo that was probative of the issue of the extent of the plaintiff's
injuries, and that “it is reasonable to believe that other portions of her Facebook profile may
contain further evidence relevant to that issue.” In contrast, in this case defendants have
made no showing that Mr. Perkowski falsely testified about the extent of his injuries, nor
have they submitted evidence tending to cast any part of his testimony in doubt. While
defendants point to photos showing him attending pre-prom, consuming alcohol, playing
soccer, and engaging in a scavenger hunt (Attorney's Aff., | 16), none of those activities
are inconsistent with the injuries Mr. Perkowski sustained when he was assaulted by the
cross-moving defendant.
6. In a second case cited by defendants - McCann v. Harleysville Insurance Co.,
78 A.D.3d 1524, 910 N.Y.S.2d 614 (4" Dep't 2010) - the court held that the plaintiff did not
have to produce an authorization for her Facebook account because the defendant “failed
° The court denied the defendants’ request for access to the Facebook account
of the second plaintiff, holding that “defendants failed to make a showing that the
disclosure of such materials will result in the disclosure of relevant evidence or is
reasonably calculated to lead to the discovery of information bearing on her claim."
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4 of 6
to establish a factual predicate with respect to the relevancy of the evidence,” and so was
essentially seeking “permission to conduct ‘a fishing expedition’ into plaintiff's Facebook
account based on the mere hope of finding relevant evidence.” And in the third decision
cited by defendants - Patterson v. Turner Construction Co., 88 A.D.3d 617, 931 N.Y.S.2d
311 (1* Dep't 2011) - the court held that because not all of the plaintiff's Facebook
communications were related to his claim, and so remanded the case back to the trial court
“for a more specific identification of plaintiff's Facebook information that is relevant, in that
it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and
other claims.” In this case, defendants have made no showing that any of the information
they are seeking conflicts with the injuries or disabilities alleged by Mr. Perkowski.
7. Should this Court nevertheless decide that the information on Mr. Perkowski’s
social media accounts may be discoverable, it should remand the matter for an in camera
inspection to determine which of those records, if any, are relevant to his injuries. See
Richards v. Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2 Dep't 2012); Spearin v.
u inmar, L.P., 129 A.D.3d 528, 11 N.Y.S.3d 156 (1° Dep't 2015).
PLAINTIFF IS ENTITLED TO OBTAIN BRENDAN ROSE’S SCHOOL RECORDS
8. Defendants state that they “do not have an objection to submitting Brendan
Roses’ [sic] school records from St. Anthony's for an in-camera inspection for disclosure
of records limited to any disciplinary action taken by the school relative to Brendan Rose
and any documents that could constitute actual or constructive notice on the part of St.
Anthony's regarding any prior similar acts of Brendan Rose.” (Attorney’s Aff., 10.)
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Plaintiff would have no objection if this Court resolves his motion in that manner, with one
proviso: This Court should review Mr. Rose’s records from any high school he attended,
since an incident at a prior school may have put St. Anthony's on notice of his violent
propensities. Although defendants contend that Mr. Rose “has not attended any other high
school apart from St. Anthony’ ret
s" (Attorney's Aff., | 5), the document they cite in support
of that contention - which is annexed to their cross-motion as Exhibit A - does not prove
that he attended only one high school. That document is a discovery response enclosing
a copy of the photos marked as exhibits at Mr. Perkowski’s deposition. Since defendants
have offered no proof that Brendan Rose did not attend any other high schools, this Court's
order should not be limited to records from St. Anthony’s.
For these reasons, the motion should be granted and the cross-motion should be
denied.
Dated: New York, New York
December 6, 2016
eroVv
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i Od DV INDEX NO. 037287/2012 UD) U 0 OUN 06 NYSCEF D0C. NO. 51 RECEIVED NYSCEF 12/06/2016 v SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK tenn ann nn ee en tn een) MICHAEL PERKOWSKI, Plaintiff, AFFIRMATION IN OPPOSITION TO -against- CROSS-MOTION AND IN FURTHER SAINT ANTHONY'S HIGH SCHOOL, BRENDAN SUPPORT OF MOTION ROSE, RICHARD ROSE, and PATRICE ROSE, Index No. 37287/12 Defendants. mon nan ne en nn en eee Jeffrey A. Nemerov, an attorney admitted to practice in the courts of this state, affirms under the penalties of perjury that the following is true: 1. lam amember of Segan, Nemerov & Singer, P.C., attorneys for plaintiff, Michael Perkowski, and | am familiar with this case. | make this affirmation (1) in opposition to the cross-motion of Defendants Brendan Rose and Richard Rose, which seeks a protective order and an order compelling plaintiff to provide discovery, and (2) in reply to those defendants’ opposition to plaintiff's motion for an order (a) compelling Defendant Saint Anthony’s High Schoo! to produce its records pertaining to Defendant Brendan Rose, and (b) compelling Defendant Brendan Rose to furnish authorizations enabling plaintiff to obtain his records from all high schools he has attended. DEFENDANTS ARE NOT ENTITLED TO UNLIMITED ACCESS TO PLAINTIFF’S SOCIAL MEDIA RECORDS 2. The moving defendants seek unlimited access to Mr. Perkowski’s accounts with Facebook, Twitter, Instagram, and Pinterest, and “any other social media site utilized by 1 of 6 the plaintiff from the date of loss’ to the present.” (Cr-Mot. Ex. C.) The request for an authorization addressed to Pinterest should be denied because defendants have failed to show that plaintiff has ever had such an account. Although they have annexed portions of his deposition transcript to their cross-motion (Cr-Mot. Ex. F), none of those pages contains testimony about Pinterest, nor did Mr. Perkowski mention having such an account at any time during his deposition. 3 Defendants’ request for authorizations addressed to Facebook, Twitter, Instagram, and “any other social media site utilized by the plaintiff " should also be denied. In determining whether information sought is subject to discovery, the test is one of usefulness and reason, and it is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. Forman v. Henkin, 134 A.D.3d 529, 22 N.Y.S.3d 178 (1 Dep't 2015). Defendants have made no such demonstration. 4. Courts have repeatedly declined defendants’ requests for access to a personal injury plaintiff's social media accounts. In Forman v. Henkin, supra, the court held that [t]he fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information.” The court so held even though, like Mr. Perskowski, Ms. Forman claimed to have sustained cognitive injuries. The court instead directed the plaintiff to provide only those photographs of herself posted on ' Plaintiff assumes that by using the undefined term “date of loss,” defendants meant the date that Defendant Brendan Rose assaulted him. 2 2 of 6 Facebook that she intended to use at trial. Mr. Perkowski would have no objection were this Court to issue such an order. As the Forman court concluded: Taken to its logical conclusion, the dissent's position would allow for discovery of all photographs of a personal injury plaintiff after the accident, whether stored on social media, a cell phone or a camera, or located in a photo album or file cabinet. Likewise, it would require production of all communications about the plaintiff's activities that exist not only on social media, but in diaries, letters, text messages and emails. Allowing the unbridled disclosure of such information, based merely on speculation that some relevant information might be found, is the very type of “fishing expedition” that cannot be countenanced. Contrary to the dissent's view, there is no analogy between the defense litigation tool of surveillance video and the wholesale discovery of private social media information. The surveillance of a personal injury plaintiff in public places is a far cry from trying to uncover a person's private social media postings in the absence of any factual predicate. See also Pecile v. Titan Capital Group, 113 A.D.3d 526, 979 N.Y.S.2d 303 (1% Dep’t 2014) (‘Regarding defendants’ demand for access to plaintiffs’ social media sites, they have failed to offer any proper basis for the disclosure, relying only on vague and generalized assertions that the information might contradict or conflict with plaintiffs’ claims of emotional distress”); Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16 (1" Dep't 2011) (With respect to defendant’s demand for access to plaintiff's social networking accounts, no showing has been made that ‘the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims”). Defendants’ argument that Mr. Perkowski’s social media accounts may contain “evidence relevant to the claims asserted in this case” (Attorney's Aff., {J 17) has been specifically rejected by the Appellate Division. See T: pp v. New York State Urban Development Corp., 102 A.D.3d 620, 958 N.Y.S.2d 392 (1 Dep't 2013) ("Defendants’ argument that plaintiff's Facebook postings ‘may reveal daily activities 3 of 6 that contradict or conflict with’ plaintiff's claim of disability amounts to nothing more than a request for permission to conduct a ‘fishing expedition”). 5. The three decisions cited by defendants are not dispositive. In Richards v. Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2™ Dep’t 2012), one of the two plaintiffs? testified that she had sustained injuries impairing her ability to play sports, and causing her to suffer pain that was exacerbated in cold weather. In searching portions of her Facebook profile that were not blocked by privacy settings, the defendants’ attorneys discovered Photographs depicting her on skis in the snow. The court concluded that the Facebook Profile contained a photo that was probative of the issue of the extent of the plaintiff's injuries, and that “it is reasonable to believe that other portions of her Facebook profile may contain further evidence relevant to that issue.” In contrast, in this case defendants have made no showing that Mr. Perkowski falsely testified about the extent of his injuries, nor have they submitted evidence tending to cast any part of his testimony in doubt. While defendants point to photos showing him attending pre-prom, consuming alcohol, playing soccer, and engaging in a scavenger hunt (Attorney's Aff., | 16), none of those activities are inconsistent with the injuries Mr. Perkowski sustained when he was assaulted by the cross-moving defendant. 6. In a second case cited by defendants - McCann v. Harleysville Insurance Co., 78 A.D.3d 1524, 910 N.Y.S.2d 614 (4" Dep't 2010) - the court held that the plaintiff did not have to produce an authorization for her Facebook account because the defendant “failed ° The court denied the defendants’ request for access to the Facebook account of the second plaintiff, holding that “defendants failed to make a showing that the disclosure of such materials will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim." 4 4 of 6 to establish a factual predicate with respect to the relevancy of the evidence,” and so was essentially seeking “permission to conduct ‘a fishing expedition’ into plaintiff's Facebook account based on the mere hope of finding relevant evidence.” And in the third decision cited by defendants - Patterson v. Turner Construction Co., 88 A.D.3d 617, 931 N.Y.S.2d 311 (1* Dep't 2011) - the court held that because not all of the plaintiff's Facebook communications were related to his claim, and so remanded the case back to the trial court “for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.” In this case, defendants have made no showing that any of the information they are seeking conflicts with the injuries or disabilities alleged by Mr. Perkowski. 7. Should this Court nevertheless decide that the information on Mr. Perkowski’s social media accounts may be discoverable, it should remand the matter for an in camera inspection to determine which of those records, if any, are relevant to his injuries. See Richards v. Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2 Dep't 2012); Spearin v. u inmar, L.P., 129 A.D.3d 528, 11 N.Y.S.3d 156 (1° Dep't 2015). PLAINTIFF IS ENTITLED TO OBTAIN BRENDAN ROSE’S SCHOOL RECORDS 8. Defendants state that they “do not have an objection to submitting Brendan Roses’ [sic] school records from St. Anthony's for an in-camera inspection for disclosure of records limited to any disciplinary action taken by the school relative to Brendan Rose and any documents that could constitute actual or constructive notice on the part of St. Anthony's regarding any prior similar acts of Brendan Rose.” (Attorney’s Aff., 10.) 5 of 6 Plaintiff would have no objection if this Court resolves his motion in that manner, with one proviso: This Court should review Mr. Rose’s records from any high school he attended, since an incident at a prior school may have put St. Anthony's on notice of his violent propensities. Although defendants contend that Mr. Rose “has not attended any other high school apart from St. Anthony’ ret s" (Attorney's Aff., | 5), the document they cite in support of that contention - which is annexed to their cross-motion as Exhibit A - does not prove that he attended only one high school. That document is a discovery response enclosing a copy of the photos marked as exhibits at Mr. Perkowski’s deposition. Since defendants have offered no proof that Brendan Rose did not attend any other high schools, this Court's order should not be limited to records from St. Anthony’s. For these reasons, the motion should be granted and the cross-motion should be denied. Dated: New York, New York December 6, 2016 eroVv 6 of 6