18-CIV-01194 CITY OF NEW YORK, ET AL. VS. FACEBOOK, INC.

CITY OF NEW YORK JENNIFER K. STINNETT, ESQ FACEBOOK, INC. JULIE E. SCHWARTZ

PETITION FOR ORDER COMPELLING PRODUCTION OF DOCUMENTS BY FACEBOOK, INC. (C.C.P. §§ 1987.], 1987.2(A), 2029.600); FOR ISSUANCE OF AN OSC RE: CONTEMPT FOR FAILURE TO COMPLY WITH COURT ORDER (C.C.P. §§ 128 & 1218(A)); AND FOR SANCTIONS (C.C.P. §§ 177.5, 1218(3), 1987.2, 2023.010, AND 2025.430)

 HEARING CONTINUED TO TUESDAY, MAY 8, 2018 AT 9:00 AM IN THE LAW & MOTION DEPARTMENT. LIMITED DISCOVERY, AS HEREINAFTER ORDERED BY THE COURT, SHALL GO FORWARD IN THE MEANTIME. If either party contests this Tentative Ruling, Counsel Shall Personally Appear. No Telephonic Appearances. No “Covering” Counsel.
 This is a petition to compel documents in response to a subpoena, and the subpoena is based, in turn, on litigation taking place New York. The underlying NY action is a personal injury action. The plaintiff in that action is one Michael Tinneny, and the defendants are the same parties as the Petitioners in this case–the City of New York, the N.Y. City Educational Const. Fund, and Lend Lease (US) Construction LMB, Inc. (collectively referenced herein as “Petitioners” or the “City of NY”).

 In the New York Litigation, it is alleged that plaintiff Tinneny was an employee of Navilus Tile, Inc. It is further alleged that Navilus contracted with the City of NY to perform repairs and renovations to a property. It is alleged that plaintiff Tinneny was struck by a falling ceiling beam while on duty at the construction site. Plaintiff claims that the injuries he sustained as a result have limited the scope of activities that he can perform.

 To defend against this claim, Petitioners are attempting to obtain plaintiff Tinneny’s social media accounts to impeach some of his testimony. Specifically, at deposition, Plaintiff testified that he had not posted anything about his medical treatment to his social media accounts, but then Petitioners produced print-outs of a social media posting in which Plaintiff referenced neck surgery. It is also claimed that Plaintiff has tampered with the potential evidence. I.e., he changed his name and changed his privacy settings to hide his social media postings because he knew his social media posts were generating evidence that undercut the injuries he was claiming.

 In the Court’s opinion, and I so find, Facebook has met its initial burden, as the opposing party, of showing that the ESI at issue is not “reasonably accessible because of ‘undue burden or expense.’”

 In response, Petitioners argue that they are not privy to Facebook’s technology and thus it is appropriate for them to have an opportunity to depose Ms. Shatnenko in order to examine the full range of what Facebook’s system is capable of.

 In light of the applicable standards, the Court finds that there are good grounds here for a limited deposition to examine the veracity of Ms. Shatnenko’s statements regarding the technological accessibility of Plaintiff’s deleted content and metadata.

 In light of the general policy against burdening third parties with such requests, that deposition shall be extremely limited and shall be paid for entirely by Petitioners. Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:596.68, citing C.C.P. §§ 1985.8(l) and 2020.220(l) (“Any order requiring compliance with a subpoena for ESI shall protect a person who is neither a party nor a party’s officer from ‘undue burden or expense’ in complying with the subpoena.”).

 Accordingly, the disposition of this matter is as follows:

1. Facebook and Petitioners are ordered to meet and confer by Friday, April 13, 2018 to address limiting the scope of the request so that it can be tailored to what is economically feasible within Facebook’s proprietary technology.

2. A limited two-hour deposition of the custodian of record, Svetlana Shatnenko, shall take place at a time mutually agreed upon by the parties, but not later than Friday, April 20, 2018 and shall be paid entirely by Petitioners.

3. Facebook and Petitioners may file additional briefing in light of any facts revealed at the deposition and/or any stipulations that the parties can reach through the meet and confer process, but such briefing shall be limited to four pages regarding Facebook’s technology and what information can be produced without becoming unduly burdensome and shall be filed no later than Friday, April 27, 2018.

4. The hearing on the instant Petition for Order Compelling Production of Documents, for Issuance of an Order to Show Cause re Contempt for Failure to Comply with Court Order, and for Sanctions is continued to be heard on Tuesday, May 8, 2018 at 9:00 a.m. in the Law and Motion Department.

 Petitioner’s Objection to Facebook’s evidence set out in paragraph 2 of the Declaration of Christian Lee is Overruled. The conversations recounted in that paragraph, during a Meet & Confer phone call, may be considered only for the fact that they were made, and are not Hearsay.