Verdicts

Lantigua denied that the Facebook posts belonged to him. He sought to depose the person who gathered the posts, but the defendants did not produce that person. Thereafter, Lantigua moved to strike the defendants' answer and to suppress the evidence obtained from him at the 2014 deposition, claiming that the defendants had failed to comply with discovery schedules and had deliberately withheld evidence from the plaintiff. Alternatively, he sought to keep the Facebook posts out of evidence. The trial court denied the motion, and plaintiff appealed.

On the issue of the evidence obtained at the 2014 deposition, the appeals court noted that “[a]s a general matter, the parties to a civil dispute are free to chart their own litigation course, and they may fashion the basis upon which a particular controversy will be resolved. In doing so, they may stipulate away statutory and even constitutional rights (see Mitchell v. New York Hosp., 61 NY2d 208, 214, 461 N.E.2d 285, 473 N.Y.S.2d 148; Cullen v. Naples, 31 NY2d 818, 291 N.E.2d 587, 339 N.Y.S.2d 464; Astudillo v. MV Transp., Inc., 136 AD3d 721, 721, 25 N.Y.S.3d 289; Quilty v. Cormier, 115 AD3d 1229, 1230, 982 N.Y.S.2d 637; Durst v. Grant, 92 AD3d 1195, 1196, 939 N.Y.S.2d 174).” In the present case, the court concluded that the trial court correctly held that it was too late for Lantigua to object to admission of the evidence obtained at the fourth deposition. As explained by the Second Department: “[S]ince the plaintiff consented to a fourth deposition, he may not now complain about procedural defects in the Goldstein defendants' request for the deposition.”

The appellate panel also found that the trial court properly exercised its discretion in denying that branch of the plaintiff's motion to strike the defendants' answer. The court pointed out that the remedy of striking a defendant's answer is appropriate only when there is “a clear showing that a defendant's failure to comply with discovery demands is willful and contumacious (see Zubaidi v Hasbani, 136 AD3d 708, 23 N.Y.S.3d 893; JPMorgan Chase Bank, N.A. v New York State Dept. of Motor Vehs., 119 AD3d 903, 990 N.Y.S.2d 577).” Lantigua failed to meet that standard.

However, the Second Department found error in the trial court's decision to admit the Facebook posts into evidence. That is because the defense never produced the person who printed out the posts, and since the plaintiff denied that they belonged to him, the lack of a witness to authenticate the posts gave Lantigua no means to prove or disprove their authenticity. Therefore, the appeals court concluded, unless the defendants can produce the person who provided the defense with the Facebook posts, those documents may not be admitted into evidence.

No Facebook Evidence Without a Witness

New York's Appellate Division, Second Department, has barred a medical malpractice defendant from submitting into evidence Facebook posts of the plaintiff, allegedly describing his physical activities, for lack of proper authentication. Lantigua v. Goldstein , 2017 N.Y. App. Div. LEXIS 3115; 2017 NY Slip Op 03164 (N.Y. App. Div., 2nd Dept., 4/26/17).

The case involves a patient who brought suit in a Brooklyn court 13 years ago. It was set to go to trial in 2013, but defendants Jeffrey Goldstein and his medical practice moved for leave to conduct a fourth deposition of plaintiff Roy Lantigua, citing new evidence. At the 2014 deposition that followed, the defendant presented the plaintiff with 13 pages of computer printouts containing statements allegedly attributable to Lantigua. The Facebook posts mentioned going out to bars, walking across the 1½-mile Williamsburg Bridge, and included statements like, “having a great workout.”

Lantigua denied that the Facebook posts belonged to him. He sought to depose the person who gathered the posts, but the defendants did not produce that person. Thereafter, Lantigua moved to strike the defendants' answer and to suppress the evidence obtained from him at the 2014 deposition, claiming that the defendants had failed to comply with discovery schedules and had deliberately withheld evidence from the plaintiff. Alternatively, he sought to keep the Facebook posts out of evidence. The trial court denied the motion, and plaintiff appealed.

On the issue of the evidence obtained at the 2014 deposition, the appeals court noted that “[a]s a general matter, the parties to a civil dispute are free to chart their own litigation course, and they may fashion the basis upon which a particular controversy will be resolved. In doing so, they may stipulate away statutory and even constitutional rights (s ee Mitchell v. New York Hosp. , 61 NY2d 208, 214, 461 N.E.2d 285, 473 N.Y.S.2d 148; Cullen v. Naples , 31 NY2d 818, 291 N.E.2d 587, 339 N.Y.S.2d 464; Astudillo v. MV Transp., Inc. , 136 AD3d 721, 721, 25 N.Y.S.3d 289; Quilty v. Cormier, 115 AD3d 1229, 1230, 982 N.Y.S.2d 637; Durst v. Grant , 92 AD3d 1195, 1196, 939 N.Y.S.2d 174).” In the present case, the court concluded that the trial court correctly held that it was too late for Lantigua to object to admission of the evidence obtained at the fourth deposition. As explained by the Second Department: “[S]ince the plaintiff consented to a fourth deposition, he may not now complain about procedural defects in the Goldstein defendants' request for the deposition.”

The appellate panel also found that the trial court properly exercised its discretion in denying that branch of the plaintiff's motion to strike the defendants' answer. The court pointed out that the remedy of striking a defendant's answer is appropriate only when there is “a clear showing that a defendant's failure to comply with discovery demands is willful and contumacious (see Zubaidi v Hasbani, 136 AD3d 708, 23 N.Y.S.3d 893; JPMorgan Chase Bank, N.A. v New York State Dept. of Motor Vehs., 119 AD3d 903, 990 N.Y.S.2d 577).” Lantigua failed to meet that standard.

However, the Second Department found error in the trial court's decision to admit the Facebook posts into evidence. That is because the defense never produced the person who printed out the posts, and since the plaintiff denied that they belonged to him, the lack of a witness to authenticate the posts gave Lantigua no means to prove or disprove their authenticity. Therefore, the appeals court concluded, unless the defendants can produce the person who provided the defense with the Facebook posts, those documents may not be admitted into evidence.