Opinion
66557-17/KI
07-27-2018
RENAISSANCE EQUITY HOLDINGS LLC, Petitioner, v. Mercedes WEBBER, Respondent.
Abraham Neuhaus, Esq., Stahl & Zelmanovitz, Attorneys for Petitioner, 747 Third Avenue, Suite 33B, New York, New York 10017, P: 212-826-6422 Martin Needleman, Esq., Brooklyn Legal Services Corp. A, Attorney for Respondent, 260 Broadway, Brooklyn, New York 11211, P: 718-487-2300
Abraham Neuhaus, Esq., Stahl & Zelmanovitz, Attorneys for Petitioner, 747 Third Avenue, Suite 33B, New York, New York 10017, P: 212-826-6422
Martin Needleman, Esq., Brooklyn Legal Services Corp. A, Attorney for Respondent, 260 Broadway, Brooklyn, New York 11211, P: 718-487-2300
Zhuo Wang, J.
In this licensee holdover proceeding, respondent Mercedes Webber moves by order to show cause for a protective order, pursuant to CPLR § 3103, "limiting discovery" demands contained in petitioner Renaissance Equity Holdings, LLC's supplemental notice to produce, dated May 15, 2018. Petitioner cross-moves for an order, pursuant to CPLR R. 3124 and § 3126, compelling respondent to provide documents in response to the supplemental notice. Alternatively, petitioner seeks an order precluding her from introducing any documents at trial that are not produced prior to her deposition.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Mercedes Webber alleges that she is the adopted daughter of the former tenant of record, Joan Webber (Joan). Joan passed away on October 25, 2015. Respondent also assumes the name, "Benze Lohan," and she was a cast member on the reality television show, "Bad Girls Club," during its eleventh season. The eleventh season aired sometime in the Fall of 2013. Respondent asserts that she has gained a social media following since her appearance on the show. She also occasionally partners with businesses to promote their products.
After the court granted leave for discovery pursuant to the parties' so-ordered stipulation, dated December 20, 2017, petitioner served respondent with a notice to produce, pursuant to CPLR R. 3120 (initial notice). The items sought included, among other things, proof of respondent's relationship to Joan, respondent's federal and state tax returns, insurance information, bank statements, and phone bills. Petitioner limited its notice to the relevant two-year period prior to Joan's death (October 25, 2013—October 25, 2015). In another so-ordered stipulation, dated January 29, 2018, respondent agreed to produce documents in response to the initial notice and to be deposed. Petitioner reserved its right to further seek additional documentation after receiving her responses.
Respondent provided answers to the initial notice in a series of undated and unsworn statements, which is annexed to petitioner's cross-motion. Notably, she wrote that she "did not file" either federal or state tax returns for the relevant period. Petitioner asserts that, despite these statements, respondent still failed to produce any documents to numerous items sought such as bank statements and phone bills.
On May 15, 2018, however, petitioner served respondent with the instant, supplemental notice to produce (supplemental notice). The supplemental notice demands an additional 15 items not contained in the initial notice including any contracts between respondent and the "Bad Girls Club" (item 28), "all [of] Respondent's posts whether in her legal name, Benze Lohan or any other aliases (whether posted by or for Respondent) to social media including but not limited to Instagram, Twitter, YouTube, and Facebook" (item 29), and "all documents" in connection with a host of third-party entities (items 31—40). Additionally, the supplemental notice seeks documents related to respondent's "travel" (item 26) and "hotel and motel" stays (item 27) during the relevant period. Specifically, petitioner requests "all documents in connection with respondent's trips" to at least 13 localities (item 41). Lastly, the supplemental notice demands authorizations for respondent's federal and state taxes, albeit from 2013 through the present rather than just the relevant period (item 3).
The third-party entities are "Tresses by Karli," "Club Onyx 360," "Miamimadnessweekend.com," "SeaLevel Lounge," "Club Gravity," "Club Nova," "UpBoys Entertainment," "1 Republic," "Cosmos Cafe," and "Sammy's Patio."
Specifically, petitioner seeks travel and lodging information for the following: "Atlanta, Georgia; Cambridge, Massachusetts; Revere, Massachusetts; Los Angeles, California; Houston, Texas; Miami, Florida; West Palm Beach, Florida; Brooklyn, New York; Syracuse, New York; New York, New York; Philadelphia, Pennsylvania; Columbus, Pennsylvania; Charlotte, North Carolina; and any other places"
One month after receiving the supplemental notice and on the eve of her deposition, respondent brought the instant order to show cause for an order "limiting discovery." Petitioner cross-moved to compel disclosure. This Court construed respondent's order to show cause as a motion for a protective order pursuant to CPLR § 3103, and petitioner's cross-motion as one to compel and/or preclude pursuant to CPLR R. 3124 and § 3126. At oral argument on July 16, 2018, the parties stipulated to resolve their respective motions in part. Importantly, the parties agreed that respondent would produce documents in response to items 26, 27, and 41 of the supplemental notice, that is, all documents relating to her travel, lodging, and "trips" to the above mentioned 13 localities.
ARGUMENTS
On her motion, respondent contends that the disputed items in petitioner's supplemental notice fail to be narrowly tailored and, as such, constitute a "fishing expedition." In support, respondent annexes her affidavit claiming that the items relating to social media have no bearing on her succession defense. Moreover, respondent asserts that the Bad Girls Club was a controversial reality television show that critics have described as "horrible" and "tasteless without merit" and that the petitioner's demand for information on this issue is meant to "smear her in the eyes of the Court." Lastly, respondent argues that compelling authorizations for tax returns, if any, during the relevant period is unnecessary since her unsworn statement that she "did not file" them is sufficient.
In opposition and in support of its cross-motion, petitioner argues that the contract with the Bad Girls Club, social media posts by herself or as Benze Lohan, and documents in connection with the abovementioned third-party entities are relevant because they will show respondent's "travel and endeavors." In support, petitioner annexes copies of online posts containing photographs and flyers ostensibly of and comments made by "Benze Lohan" on the public portion of her social media accounts, both within and outside of the relevant period. Many of these posts, however, do not include a location. Lastly, petitioner argues that respondent's self-serving denial that she did not file taxes during the relevant period is insufficient.
DISCUSSION
In a summary proceeding, discovery is not obtainable by right; rather, leave must be granted by the court (see CPLR § 408 ). However, "[n]otwithstanding the general sentiment that discovery is antithetical to the purposes of special proceedings, the courts have repeatedly approved discovery in cases arising from disputed claims to tenancy where the facts concerning a tenant's residence and the use made of leased premises are peculiarly within the tenant's knowledge" (see Quality and Ruskin Assoc. v. London , 8 Misc.3d 102, 103, 800 N.Y.S.2d 259 [App. Term 2005] ). Moreover, "although discovery may delay resolution of this summary proceeding, there is no prejudice as the landlords have decided that clarification of the facts is preferable to a quick resolution" (see Malafis v. Garcia , 2002 N.Y. Slip Op. 40180(U), 3, 2002 WL 1058589 [App. Term, 2d Dept.2002] ). Here, it is undisputed that petitioner obtained leave for discovery under the prior, so-ordered stipulations.
Once leave for discovery has been granted, general principles governing disclosure apply (see e.g. Pavel , 21 Misc.3d 143(A), 880 N.Y.S.2d 225 [App. Term, 2d Dept.2008] ; Quality and Ruskin Assoc. v. London , 8 Misc.3d 102, 104–05, 800 N.Y.S.2d 259 [App. Term, 2d Dept. 2005] ). That is, "[a] party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is "material and necessary"—i.e. relevant ..." ( Forman v. Henkin , 30 N.Y.3d 656, 93 N.E.3d 882 [2018] ; see generally CPLR § 3101 ). However, "[u]nder our discovery statutes and caselaw, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party" (id ). These special burdens include whether the discovery sought is overbroad, burdensome, or palpably improper (see Quality and Ruskin Assoc. , 8 Misc.3d at 104–05, 800 N.Y.S.2d 259 ). Thus, CPLR § 3103 allows the court on its own initiative or upon motion to make a protective order denying or otherwise regulating the use of any discovery device to prevent "unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts."
The caselaw on social media discovery had, until recently, required that the party seeking disclosure establish a "factual predicate," that is, information which "contradicts or conflicts with claims [by the party against whom discovery is sought]" (see Richards v. Hertz Corp. , 100 A.D.3d 728, 953 N.Y.S.2d 654 [2d Dept. 2012] ; Tapp v. New York State Urban Dev. Corp , 102 A.D.3d 620, 958 N.Y.S.2d 392 [1st Dept. 2013] ; Kregg v. Maldonado , 98 A.D.3d 1289, 1290, 951 N.Y.S.2d 301 [4th Dept. 2012] ). Moreover, parties were restricted to viewing the public portions of the accountholder's social media page to ferret out a basis warranting disclosure of the accountholder's private profile (see Richards v. Hertz Corp. , 100 A.D.3d 728, 729–730, 953 N.Y.S.2d 654 ; Spearin v. Linmar , 129 A.D.3d 528, 528, 11 N.Y.S.3d 156 [1st Dept. 2015] ; Romano v. Steelcase Inc. , 30 Misc.3d 426, 430, 907 N.Y.S.2d 650 [Sup. Ct. 2010] ).
But in a recent opinion, the Court of Appeals in Forman v. Henkin rejected the factual predicate standard and enunciated a two-part test for discovery of a party's social media (see 30 N.Y.3d 656, 93 N.E.3d 882 [February 13, 2018] ). In Forman , plaintiff commenced a personal injury action after falling from defendant's horse. Plaintiff alleged that she suffered traumatic brain injury, memory loss, and other cognitive deficits as a result of the accident. At her deposition, plaintiff stated that she posted "a lot" of pre-accident photographs showing her active lifestyle, but that after the accident she had become a recluse, and she had difficulty using a computer and composing coherent messages. Plaintiff also claimed that she could no longer cook, travel, participate in sports, horseback ride, or engage in other social activities.
The Forman defendant demanded authorizations for the entirety of plaintiff's Facebook account from both her public and private accounts. After plaintiff objected, defendant moved to compel disclosure. Supreme Court granted the motion to the limited extent of directing that plaintiff produce all photographs of herself posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself posted to her Facebook account after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the message. Supreme Court denied disclosure of the content of plaintiff's written Facebook posts, whether authored before or after the accident.
On appeal, the Appellate Division modified Supreme Court's order by limiting disclosure to photographs posted on Facebook that plaintiff intended to introduce at trial and eliminating the authorization for data related to post-accident messages. In a unanimous decision, the Court of Appeals reversed the Appellate Division's order and reinstated Supreme Court's order.
The Court of Appeals in Forman reaffirmed the principle that discovery under CPLR § 3101"embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise." The Court cautioned, however, that the right to disclosure - although broad - is "not unlimited." Thus, "when courts are called upon to resolve a dispute, discovery requests must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure." (see Forman , supra, 30 N.Y.3d at 662, 93 N.E.3d 882 citing Andon ex rel. Andon v. 302–304 Mott St. Assoc. , 94 N.Y.2d 740, 747, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ).
After examining the rules governing discovery, the Forman court rejected the notion that the account holder's so-called "privacy" settings govern the scope of disclosure in these types of cases. Rather, the request need only be "appropriately tailored" and "reasonably calculated to yield relevant information." Nevertheless, the Court cautioned that, even in personal injury actions, discovery is not unlimited since "directing disclosure of a party's entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation." Because "such an order would be likely to yield far more non-relevant than relevant information," the court can regulate the breadth of the disclosure request to protect litigants from "unnecessarily onerous application of the discovery statutes" (see Forman , supra at 664, 93 N.E.3d 882 ; see generally CPLR § 3103 ).
Thus, so as to avoid sanctioning the oft-referenced "fishing expedition," the Forman court gave the following test: "first, the court should consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account;" and "second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials" ( Forman , supra at 665, 93 N.E.3d 882 ).
Turning to the nature of the personal injury litigation at issue, the Forman court held that because plaintiff testified at her deposition that she posted "a lot" of photographs documenting her active lifestyle prior to the accident, defendant met its burden of showing that disclosure of pre- and post- accident photographs was reasonably likely to yield relevant evidence. Moreover, the Forman court found that Supreme Court's order was sufficiently tailored to avoid embarrassment or invasion of privacy by excluding disclosure of photographs depicting nudity or romantic encounters. Lastly, given plaintiff's claim that she suffered cognitive injuries, disclosure of data revealing the timing and number of characters in her posted messages met the threshold of relevance.
Because the defendant in Forman did not appeal to the Appellate Division, the Court of Appeals did not reach the question of whether he had met his burden of disclosing the content of plaintiff's messages (see Forman , supra). However, given the Court's elimination of the heightened, "factual predicate" standard for social media discovery, this Court interprets Forman to permit disclosure of the content of a party's online messages upon a showing of relevance tailored to the particular controversy.
Applying Forman to the case at bar, this Court must first address the nature of the litigation and claims, or in this instance, defenses, as well as any other specific information to the case. That is, "if an offer is made to a tenant [of a rent stabilized housing accommodation pursuant to a renewal lease within the applicable time frame]... and such tenant has permanently vacated the housing accommodation, any member of such tenant's family... who has resided with the tenant in the housing accommodation as a primary residence for a period of no less than two years... immediately prior to the permanent vacating of the housing accommodation by the tenant, or from the inception of the tenancy or commencement of the relationship, if for less than such periods, shall be entitled to be named as a tenant on the renewal lease" (see 9 NYCRR § 2523.5 [b][1] ). In other words, succession rights are afforded to a family member of the tenant of record if that individual can prove that she primarily resided in the subject premises for at least two years immediately prior to the tenant's permanent vacatur based on, as here, the tenant's death (see e.g. Pavel v. Fischer , 21 Misc.3d 143(A), 880 N.Y.S.2d 225 [App. Term, 2d Dept. 2008] ). "Succession is in the spirit of the statutory scheme, whose goal is to facilitate the availability of affordable housing for low-income residents and to temper the harsh consequences of the death or departure of a tenant for their ‘traditional’ and ‘non-traditional’ family members" (see Murphy v. New York State Div. of Hous. and Community Renewal , 21 N.Y.3d 649, 653, 977 N.Y.S.2d 161, 999 N.E.2d 524 [2013] [discussing succession generally] ). "The regulation should be liberally construed to carry out the reform intended and spread its beneficial effects as widely as possible" ( Jourdain v. New York State Div. of Hous. and Community Renewal , 159 A.D.3d 41, 45 [2d Dept. 2018] ).
The main inquiry here is whether the discovery sought is relevant to proving or disproving respondent's defense that she primarily resided with Joan at the premises for at least two years prior to her death on October 25, 2015. Thus, the traditional indicia of primary residence, including respondent's driver's license, voter registration, tax returns, telephone and bank records, are clearly obtainable (see e.g. Quality and Ruskin Assoc. , supra at 104—05, 800 N.Y.S.2d 259 ["insomuch as a number of the items sought, such as utility, banking, and other records are relevant to proof of residency... [they are] "reasonably calculated to elicit information that might lead to admissible evidence ..."]; see also Pavel , supra at 2, 880 N.Y.S.2d 225 ; see generally 9 NYCRR 2520.6 [u] ).
That respondent possesses the pseudonym, "Benze Lohan," constitutes "specific information to the case" under Forman because this information may show the duration of any stays, if any, outside of the subject premises. Contrary to respondent's argument, to permit discovery of relevant material from a litigant's social media account under her true name but bar any disclosure under her assumed name would subvert Forman's ruling that social media is obtainable so long as the request is "appropriately tailored and reasonably calculated to yield relevant information."
But it is under the second prong of the Forman test where petitioner's supplemental notice fails. That is, this Court must balance the "utility of the information sought against the specific privacy concerns of the account holder" and "issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials" (see Forman , supra at 665, 93 N.E.3d 882 ).
Specifically, item 29 of the supplemental notice seeks, without limitation, "all [of] Respondent's posts whether in her legal name, Benze Lohan or any other aliases (whether posted by or for respondent) to social media." Even if "all" posts are limited to the relevant period, the demand is nevertheless overbroad because it fails to state the specific information sought within these posts on the narrow issue of primary residence. Indeed, and within the context of online social media, seeking discovery of posts "for respondent" may include publications by a third-party in an online forum respondent has no access to and, as such, are not in respondent's possession, custody, or control (see CPLR 3120 ; see generally Rosado v. Mercedes-Benz of N. Am., Inc. , 103 A.D.2d 395, 398, 480 N.Y.S.2d 124 [2d Dept. 1984] ). Like the personal injury plaintiff in Forman who was asked to disclose the "entirety" of her Facebook profile, directing that respondent on her succession defense produce "all" social media posts is tantamount to revealing "every transaction, communication, and photograph that respondent shared with any person on any topic" during a two-year period (see Forman , supra at 665, 93 N.E.3d 882 ). As such, item 29 is insufficiently tailored to avoid disclosure of non-relevant materials.
Unlike Forman , petitioner seeks "all" posts from respondent's social media pages from respondent herself, rather than an authorization to access these accounts from the companies that have custody of those pages. To the extent this may be burdensome to respondent, she did not raise this argument in her moving papers or at oral argument. Thus, respondent's failure to object to the form of petitioner's demand constitutes a waiver particularly since any responses are temporally limited to the relevant, two-year period and substantively limited in accordance with the directives below.
Likewise, item 30 impermissibly seeks "all documents which utilize the name Benze Lohan." This demand fails as it contains no specificity with respect to the information sought. Moreover, respondent's assertions support her argument that broad discovery requests as to Benze Lohan fall outside the realm of "material and necessary" information relating to her succession claim. Namely, respondent asserts that the notoriety she has gained since the Bad Girls Club has led to "partnerships" with third-party organizations to promote their products. In this regard, the photographs contained in petitioner's own exhibits reveal that "Benze Lohan" may travel entirely for her job rather than for housing. Although, for the reasons already stated, discovery requests as to respondent's alias may not be entirely shielded from a narrowly tailored demand with respect to primary residence, the demand here is so overbroad as to be palpably improper (see Titleserv, Inc. v. Zenobio , 210 A.D.2d 314, 315–16, 619 N.Y.S.2d 769 [2d Dept. 1994] ).
Petitioner also seeks in items 31 through 40 to compel production of "all documents" in connection with a number of third-party entities. Petitioner argues in its cross-motion that it demanded these items because respondent was traveling across the United States with the Bad Girls Club. Yet petitioner asserts the same reason for requesting travel and lodging information—items that respondent has agreed to produce. Moreover, petitioner's moving papers are bereft of any explanation as to the nature of the relationship between respondent and these entities. Under the circumstance, there is an insufficient offer of proof demonstrating that the documents sought are relevant.
In any event, the Court looks to the parties' most recent stipulation as further justification for denying the breadth of online discovery sought by petitioner. Namely, respondent agreed to produce information relating to items 26, 27 and 41, to wit, all documents relating to her travel, lodging, and "trips" to over 13 different locations during the relevant period. In essence, respondent agreed to provide documentation by way of bills, receipts, and itineraries on the very same issues that petitioner seeks in the form of online posts, comments, and snapshots. In contrast to a photograph on one's Facebook and other social media - which may or may not state the real location of the individual or thing depicted in the image - the documents that respondent has consented to provide are far more likely to yield relevant information that is germane to her succession claim. Thus, given what she has already agreed to turn over, production of respondent's social media without limitation enhances the probability of disclosing material that is embarrassing and prejudicial to or unnecessarily invades the privacy of respondent.
Although palpably improper demands may be struck as a whole (see Posh Pillows, Ltd. v. Hawes , 138 A.D.2d 472, 474, 525 N.Y.S.2d 877 [2d Dept. 1988] ), the better course in this instance is to craft an order narrowly tailored to the issue of respondent's primary residence during the relevant period. This Court therefore adopts an approach like the one taken by Supreme Court in Forman , in accordance with the directives below.
The Forman court makes clear the important role of counsel during the discovery process: "attorneys, while functioning as advocates for their clients' interest, are also officers of the court who are expected to make a bona fide effort to properly meet their obligations in the disclosure process" (see Forman , supra at 662, *2, 93 N.E.3d 882 ). In the context of the instant, year-long summary proceeding, this Court expects counsel to exchange outstanding discovery in good faith and in accordance with the timeframes set forth in this order.
With respect to that part of the cross-motion seeking to compel disclosure of her contract with the Bad Girls Club, petitioner has met its burden of entitlement to this material. Specifically, and unlike petitioner's request for all documents relating to Benze Lohan that fails to indicate any temporal limitation, the Bad Girls Club contract is relevant as respondent admits that she was a cast member on the show during the relevant period (i.e. 2013). Thus, the address that respondent listed, if any, on the contract may yield information tending to prove or disprove her succession defense.
Petitioner has also demonstrated its entitlement to authorizations of respondent's federal and state tax returns. Respondent's unsworn assertion that she did not file any taxes during the relevant period is self-serving and insufficient. Moreover, tax records are within the scope of disclosure in succession claims because the address listed on these documents is relevant to the question of primary residence (see e.g. Pavel v. Fischer , 21 Misc.3d 143(A), 880 N.Y.S.2d 225 [App. Term, 2d Dept. 2008] ; see also Lesser v. Park 65 Realty Corp. , 140 A.D.2d 169, 173, 527 N.Y.S.2d 787 [1st Dept. 1988] ). As such, respondent is directed to execute authorizations to release her federal and state tax returns, if any, subject to redaction (see Kovacs v. Bloom , 267 A.D.2d 357, 358, 699 N.Y.S.2d 922 [2d Dept. 1999] ). Accordingly, it is
ORDERED that respondent Mercedes Webber's motion for a protective order and petitioner Renaissance Equity Holdings LLC E's cross-motion are granted in accordance with the parties' July 16, 2018 stipulation; and it is further
ORDERED that petitioner Renaissance Equity Holdings LLC E's cross-motion is also granted in part to the following extent:
(1) directing that respondent within 10 days from the date of this order execute written authorizations of all federal and state tax returns, if any, for the period of 2013 through 2015, redacted therefrom all content except for the address listed on the returns;
(2) directing that respondent within 15 days from the date of this order produce all contracts executed between the Bad Girls Club within the relevant period (October 25, 2013 through October 25, 2015), redacted therefrom all content except for the address, if any, listed by respondent and the date of the contract; and
(3) directing that respondent within 20 days from the date of this order produce all online posts whether in her legal name, Benze Lohan, or any other aliases to social media including but not limited to Instagram, Twitter, YouTube, and Facebook under the following conditions:
(a) if the post contains a location and date, then respondent shall redact all content, including photographs and third-party statements, except for the location and date stated on the post;
(b) if the post contains any comment or statement made by respondent in which she states a location, then respondent shall redact only the photograph contained within the post; and
(c) if the post contains a comment or statement made by respondent which contains the word "home," "house," "apartment" or any other synonym of the word "residence," then the entire content of the post shall be produced with no redaction.
And it is further
ORDERED that the cross-motion is otherwise denied with leave to serve a revised set of proposed discovery demands following respondent's deposition; and it is further
ORDERED that respondent Mercedes Webber's motion for a protective order is granted solely to the extent that a protective order is made as to any content disclosed that is not in accordance with the above; and it is further
ORDERED that the trial date of July 30, 2018 is hereby adjourned to September 5, 2018 at 9:30 a.m. for the parties and attorneys to appear for trial in Room 502, Part J at 141 Livingston Street.