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Pre-Lawsuit, Twitter is required to disclose account information for future civil lawsuit

“By order to show cause and petition filed on April 16, 2014, petitioner Lemon Juice seeks an order pursuant to CPLR 3102 (c) granting disclosure as against respondents Twitter, Inc. and Blackberry Limited to aid in bringing an action and to preserve evidence.” After pictures were taken and posted online of an infant testifying in Kings County, an arrest and subsequent civil action was brought. The testimony was produced because the infant was a witness in a sex crime. Lemon Juice was arrested, and further information was disseminated on this Twitter account. Because of this “Lemon Juice contends that he needs disclosure of the identity of the creator to name potential defendants in an action for damages for personal injuries based on claims of prima facie tort, intentional infliction of emotional distress, fraud and malicious prosecution.”

Law: Before an action is commenced, "disclosure to aid in bringing an action" may be obtained by court order (CPLR 3102 [c]), including "discovery in order to obtain information relevant to determining who should be named as a defendant" (Konig v. CSC Holdings, LLC, 112 AD3d 934, 935 [2nd Dept 2013]). Such pre-action disclosure is not available to a would-be plaintiff to determine if he or she has a cause of action (see Stewart v. New York City Transit Authority, 112 AD2d 939 [2nd Dept 1985]). Pre-action discovery "is not permissible as a fishing expedition to ascertain whether a cause of action exists" (Bishop v. Stevenson Commons Assoc., L.P., 74 AD3d 640, 641 [1st Dept 2010] citing Liberty Imports v. Bourguet, 146 AD2d 535, 536 [1st Dept 1989]) and is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong (Id.). Generally, the determination of whether a party has demonstrated merit lies in the sound discretion of the trial court (Bishop v. Stevenson Commons Assoc., L.P., 74 AD3d 640, 641 [1st Dept 2010] citing Matter of Peters v. Sotheby's Inc., 34 AD3d 29 [1st Dept 2006], lv denied 8 NY3d 809 [2007]).

Prior to the commencement of an action, disclosure to preserve information may be obtained by court order pursuant to CPLR 3102 (c). Preservation need not be limited to testimony, but may be directed at enjoining a potential defendant or other person from disposing of physical evidence (see O'Grady v. City of New York, 164 Misc 2d 171 [N.Y. Sup 1995]). When a potential plaintiff invokes CPLR 3102 (c) for the purpose of preserving information, the existence of a claim need not be demonstrated with certainty (see Matter of Davis, 178 Misc. 2d 65 [Ct Cl. 1998]). In Matter of Davis, the court applied CPLR 3102 (c) to permit an inmate with serious health problems to depose himself on notice to potential adverse parties. The court allowed the deposition so that in the event that it was later determined that he had a claim for damages, his testimony would be preserved as evidence.

Petitioner, Lemon Juice, filed an order to show cause and asked for this information prior to filing suit. The Court held that “[a] petition for pre-action discovery limited to obtaining the identity of prospective defendants should be granted where the petitioner has alleged facts fairly indicating that he or she has some cause of action (Konig v. CSC Holdings, LLC, 112 AD3d 934, 935 [2nd Dept 2013] citing, Matter of Toal v. Staten Island Univ. Hosp., 300 AD2d 592 [2nd Dept 2002]).” Further, “[i]f Lemon Juice can show facts fairly indicating that he has at least one prima facie cause of action, he may obtain disclosure pursuant to CPLR 3102 (c) to ascertain who should be named as a defendant (Matter of Toal v. Staten Island Univ. Hosp., 300 AD2d 592 [2nd Dept 2002]). In determining whether a prima facie cause of action exists, the evidence must be considered in the light most favorable to Lemon Juice giving him the benefit of every favorable inference which can reasonably be drawn (see Matter of Ero v. Graystone Materials, 252 AD2d 812, 814 [3rd Dept 1998]).”

The Court held that the anonymous Twitter account creator is not entitled to free speech and such behavior constitutes an actionable tort. Further, “[t]he documents possessed by Twitter which identify the creator should be preserved for Lemon Juice's contemplated action. The photograph of the infant victim posted to the subject account should also be preserved. The image purportedly shows the infant victim inside the courtroom, when she was testifying against Weberman at his trial. It is crucial evidence of the creator's intent to wilfully violate Judge Ingram's order and to frame Lemon Juice for it.”

In sum, the Court directed Twitter to disclose to Lemon Juice the basic subscriber information, records, internet protocol addresses and other similar information sufficient to identify the owner or operator of the Twitter account, to preserve documentation, photographs of the infant victim and not reproduce or share said photograph without permission of Court.

The case is Juice v. Twitter, Inc., 502898/14, NYLJ 1202672226946, at *1 (Sup., KI, Decided August 29, 2014.

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