In this age of the internet, New York State courts often have to make judgments as to a party’s reasonable expectation of privacy relating to the use or disclosure of electronic communications.[1] This can be seen in two recent trial court opinions concerning the “cloning” or “mirror imaging” of computer hard drives that addressed the issue what electronic information of a party or non-party is discoverable and who should have access to such information. Another trial decision issued recently ruled on the propriety of sealing court documents, where it was found that the movant had no expectation of privacy over the allegedly scandalous electronic communications. 

Other newly rendered decisions in the context of allegedly improper postings on websites are protective of, for instance, a party’s photograph used without permission, purported libelous comments and graphics concerning a party, and an “innocent” website on which supposed defamatory comments were posted. However, recent authority is less protective of individuals who affirmatively utilize electronic communications, but then sue when electronic communications later allegedly cause harm.

 

In Karim v. Natural Stoned Industries, Inc.,[3] the issue in a labor law action was the “employability” of an allegedly “gravely injured” plaintiff. A third party sought to compel the “cloning” of plaintiff’s computer claiming that the contents of the computer would be “highly relevant” and “critical to the question of whether plaintiff was ‘gravely injured.’”[4] The court denied the motion, stating that the “computer hard drive is not relevant and material[5] to plaintiff’s ability to return to employment. Given the computers access by several members of plaintiff’s household, it would not be possible . . . to discern plaintiff’s computer usage beyond the use plaintiff testified at the deposition.”[6] The court observed that “the hard drive has private communications and actions of the plaintiff and family that have nothing to do with the limited issue of plaintiff’s employability.”[7] The court observed that notwithstanding any limiting orders regarding items copied from the hard drive to the clone, “it would be improperly invasive to order this discovery.”[8]

 

In the Matter of Maura, Jr.,[9] the claim was made that a prenuptial agreement was not authentic and that it was “somehow altered.”[10] A non-party law firm involved in drafting the prenuptial agreement was subpoenaed for its computer records. The court directed that a “clone” of the law firm’s hard drive be made, but the court declined to permit the forensic expert to be chosen by the movant. Nor would the court shift the costs of the “cloning” to the non-party law firm.[11] The court allowed the non-party law firm to choose its own computer forensic expert, but permitted counsel for the parties to be present when the computer was “cloned.” The court required that relevant documents be provided to the court under seal and the law firm could interpose objections on privilege grounds or otherwise to prevent the release of such documents to requesting counsel. On reargument, movant asserted, among other things, that the “court’s direction regarding access to the hard drive of [the law firm’s] computer is ‘problematic’” because the attorney who drafted the prenuptial agreement may have been “complicit in fraud.”[12] Movant argued that the law firm should not control the hiring of the forensic expert, and that the court’s direction “’fail[ed] to assure that [the] search will be conducted in a fair and impartial manner.’”[13] The court denied reargument finding there was “no evidence . . . submitted . . . that the attorney-draftsmen engaged in any misconduct by way of changes to the prenuptial agreement and under the circumstances the retention of a court-appointed expert is not warranted.”[14] The court further noted that it had “expressly considered the costs and expenses associated with the production of the computer discovery sought and eschewed a share of the costs on [the non-party.]”[15]

 

 

In IDX Capital, LLC v. Phoenix Partners Group, LLC,[16] defendants sought to seal motion papers on the grounds that the proposed pleading contained “irrelevant scandalous and prejudicial material.”[17] This material consisted of e-mails and instant messages, and defendants asserted that because news agencies are interested such matter, “there is a danger of publication of the material.”[18] The court held that there was “no reasonable expectation of privacy,” where the information was movant’s own e-mails and instant messages that were communicated over the Bloomberg messaging system.[19] The court also found that the public interest weighed in favor of not sealing information. 

 

 

In Geary v. Town Sports International Holdings, Inc.,[20] plaintiff discovered that he had been photographed and that the photo had been used for advertising purposes without his consent at various sports clubs owned by defendant. The photograph later appeared on defendant’s website. The court was asked to determine whether use of the photograph on defendant’s website constituted “republication,” thereby “retriggering” the one year statute of limitations for a cause of action alleging violation of a right of privacy under Section 51 and 52 of New York’s Civil Rights Law.[21] The court noted that where the “material at issue is republished in a new format intended to reach a new audience, the statute of limitations will run anew from the date of republication.”[22] In denying defendant’s motion to dismiss, the court noted that the “website is presumably directed at a far wider audience primarily comprised of those who are not members and whom defendant is seeking to attract as new members,” and found that “republication” had thus occurred.[23]

 

 

In Kaisman v. Fernandez,[24] plaintiff alleged that defendants caused plaintiff’s name to be improperly linked to pornographic websites appearing on certain internet search results. The court dismissed plaintiff’s claim for intentional infliction of emotional distress on the basis that he had sent “pornographic images, sounds and video files as e-mail attachments [which] contradict[] a finding that he suffered severe emotional distress from learning his name was linked to pornography.”[25] 

On reargument, plaintiff alleged that the court misconstrued the potential effect the internet search results “might have on him personally and professionally contending that his sending a few private e-mails with ‘disputed’ contents does not defeat his claim to being damaged when his name becomes publicly linked to hardcore pornography.”[26] Plaintiff submitted the results of a subpoena issued to Google that showed “that the same Internet Protocol (“IP”) address (and therefore, the same computer used by one or a limited number of individuals) was responsible for creating the Internet Search Results over a period of a few days in September 2007.”[27] These inquiries apparently showed that the “IP address is owned by a Texas company, which sub-licensed it to a company based in the Ukraine, which ‘seems willing to cooperate’ in further investigation.”[28] 

The court, however, noted that plaintiff did not submit anything “linking this data to defendants.”[29] As such, the court ruled that plaintiff’s “name appear[ing] in the Internet Search Results after an online periodical reported the content of the publicly available court records of a sexual harassment lawsuit filed against him does not support his allegation that defendants caused those results.”[30]

 

Electronic Communications and Graphic Images. In Leser v.KarenKooper.com,[31] the court had previously upheld plaintiff’s cause of action for libel per se, but required plaintiff to replead with greater specificity as it related to alleged defamatory statements based on plaintiff’s claim that her picture was wrongfully posted by defendants on a pornographic website. On defendants’ motion to dismiss and Plaintiff’s cross-motion to amend, the court sustained plaintiff’s libel per se cause of action on the basis that she quoted the libelous statements and included “graphic pictorial evidence [from websites] allegedly used by the defendants in conjunction with [such] statements.”[32] The court also denied defendants’ motion seeking to strike the allegedly scandalous and prejudicial materials from the amended complaint since “the graphic images and words relate directly to plaintiff’s libel claim.”[33]

 

 

In Chelsea Fine Custom Kitchens v. Apartment Therapy LLC,[34] plaintiff alleged commercial disparagement on the basis that a website contained false and misleading information concerning the quality of plaintiff’s services and the competitiveness of its pricing. Defendant moved to dismiss under the Communications Decency Act,[35] alleging that website owners are absolutely immune for statements made by third parties. In granting dismissal, the court found that the complaint “fails to allege any facts beyond mere speculation showing that defendant created any of the comments posted in the name of third parties.”[36]