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Facebook Discovery Leads to Adverse Inference (NY)

October 5, 2017

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In <em><a href="">Safer v. Hudson Hotel</a>,</em> the Civil Court of the City of New York addressed whether an adverse inference charge was proper as part of the trial court’s jury charge.
<p style="text-align: justify;">The plaintiff alleged that she stepped on a broken glass in the defendant’s hotel bar which caused serious personal injuries to her mind and body. As such, the defendants served plaintiff with a discovery demand for "color copies of Timeline Photos posted to Plaintiff's Facebook account from May 13, 2012 to present".  Defendants moved to compel plaintiff to produce the aforementioned material and the Supreme Court ordered that “….photographs of plaintiff in her Facebook profile are probative of the issue of the extent of her alleged injuries to the extent they relate to or show the condition of her left foot. Accordingly, plaintiff is directed to provide the following for an in-camera review inspection within 30 days: all status reports, emails, photographs, and videos posted on plaintiff's Facebook…….” Thereafter, plaintiff provided defendants with black and white, low resolution screenshots of <em>some </em>of the Facebook posts in the Court’s production order – which lead to the defendants serving a so-ordered subpoena for all documents in said order. Although plaintiff responded to the subpoena, she didn’t produce eight posts named in the production order.</p>
<p style="text-align: justify;">In plaintiff’s opposition she admitted that she had inadvertently deleted photos related to her ex-fiancé. As such, defendants argued that the Court should sanction plaintiff for spoliation, and to instruct an adverse inference charge because they were prejudiced by the loss of the above-mentioned photos. The Court held that an adverse inference charge is a proportionate sanction for plaintiff’s spoliation.</p>
<p style="text-align: justify;">This decision serves as a reminder that 1) defendants can request relevant social media material from the plaintiff; and 2) if they do not comply with the demand that an adverse inference charge may be warranted.</p>
Thanks to Corey Morgenstern for his contribution to this post.  Any questions, please contact <a href="">Georgia Coats</a>.

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