Case 3:10-cv-00597-GLS-DEP Document 592 Filed 11/10/14 Page 1 of 5

903 Hanshaw Road

Ithaca, New York 14850
(607) 257.5165 Phone
(607) 257.6293 Fax
www.stokeswagner.com
Paul E. Wagner
pwagner@stokeswagner.com

November 10, 2014

VIA CM/ECF
Honorable David E. Peebles
U.S. Magistrate Judge
United States District Court
Northern District of New York
100 S. Clinton Street
Syracuse, New York 13261
Re: Miller v. City of Ithaca, et al.
3:10-cv-597 (GLS/DEP)
Your Honor:
Please accept this letter as a response to Attorney Bosmans letter motion seeking to
quash the subpoena issued by Defendants to Craigslist. Contrary to Plaintiffs assertion, the
information sought is not privileged or otherwise protected. It does not involve any of the
Craigslist postings already purportedly investigated by the District Attorneys office, but
postings from this year that appear to have been made by Plaintiff. The purpose of the subpoena
is to verify the authorship of these defamatory postings, to show that his claim to be
emotionally distressed due to alleged retaliation against him is demonstrably false.
Generally, [Social Network Site] content is neither privileged nor protected by any right
of privacy. Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759, at *1 (M.D. Fla.
Feb. 21, 2012). Even personal diaries are discoverable if they contain relevant information
regarding contemporaneous mental states and impressions of parties. Reid v. Ingerman Smith
LLP, 2012 WL 6720752, at *2 (E.D.N.Y. Dec. 27, 2012), citing Zakrzewska v. New School,
2008 WL 126594, at *2 (S.D.N.Y.2008) (granting discovery of plaintiff's diary because it
would be unfair ... to permit a plaintiff claiming emotional distress to block discovery of facts
that may shed important light on whether any emotional distress actually was suffered). Thus,
courts routinely permit discovery of a plaintiffs SNS content, because the plaintiff has put his
own physical and emotional state at issue, and defendants are permitted to discover information

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that might contradict his claims. See, e.g., Sourdiff v. Texas Roadhouse Holdings, LLC, 2011
WL 7560647, at *1 (N.D.N.Y. Oct. 24, 2011) (Peebles, J.) (Upon downloading all such
available information, including any deleted postings, plaintiffs' counsel shall provide to
defendant any photographs, profile information, postings, messages, comments and status
updates and/or other posts, including deleted content, that are in any way related to plaintiff's
emotional or mental state, her physical condition, activity level, employment, this litigation, and
the injuries and damages claimed by plaintiffs in their complaint in this action.).
It is recognized in federal courts and elsewhere that a plaintiffs activity on the internet,
such as Facebook and other social networks postings, is relevant to claims of emotional distress.
It is reasonable to expect severe emotional or mental injury to manifest itself in some SNS
[social networking sites] content, and an examination of that content might reveal whether onset
occurred, when, and the degree of distress. Further, information that evidences other stressors
that could have produced the alleged emotional distress is also relevant. E.E.O.C. v. Simply
Storage Mgmt., LLC, 270 F.R.D. 430, 435 (S.D. Ind. 2010). The court in Simply Storage
refused to limit production to postings directly referencing the matters alleged in the complaint.
This standard likely would not encompass clearly relevant communications and in fact would
tend only to yield production of communications supportive of the claimants allegations. It
might not, for example, yield information inconsistent with the claimants allegations of injury or
about other potential causes of the injury. Id. The court ultimately ordered production of a
number of items including any profiles, postings, or messages (including status updates, wall
comments, causes joined, groups joined, activity streams, blog entries) and SNS applications for
claimants Zupan and Strahl for the period from April 23, 2007, through the present that reveal,
refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal,
refer, or relate to events that could reasonably be expected to produce a significant emotion,
feeling, or mental state. Id. at 436. See also Holter v. Wells Fargo & Co., 281 F.R.D. 340, 344
(D. Minn. 2011) ([G]iven that plaintiff has placed her employment with and termination of
employment from defendant, along with her mental disability and emotional state at issue, the
defendant is entitled to information from her social media websites that bear on these topics,
including other stressors in plaintiffs life that could account for the emotional distress she is
now claiming was due to her treatment at and termination of employment from defendant.).
Whether it was the Plaintiff who posted these defamatory items is directly relevant to his
claim for emotional distress, which is to be retried in December. The cases cited by Plaintiff are
not relevant, because in the present case, as in Simply Storage, the Plaintiff has put his current
mental state at issue, and Defendants are therefore entitled to discover information about his
current mental state, including information that he voluntarily posted on the internet. In any

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event, these abhorrent and defamatory postings, if indeed posted by the Plaintiff, are not entitled
to any First Amendment protection. 1
[T]he basis of the First Amendment is the hypothesis that speech can rebut speech,
propaganda will answer propaganda, free debate on ideas will result in the wisest governmental
policies. An analysis of the leading cases in this Court which have involved direct limitations
on speech, however, will demonstrate that both the majority of the Court and the dissenters in
particular cases have recognized that this is not an unlimited, unqualified right, but that the
societal value of speech must, on occasion, be subordinated to other values and considerations.
Dennis v. United States, 341 U.S. 494, 503 (1951). Allowing the broadest scope to the
language and purpose of the Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances. Chaplinsky v. State of New
Hampshire, 315 U.S. 568, 571 (1942).
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or fighting wordsthose which by their very
utterance inflict injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality. Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument.
Id. at 571-572 (citation omitted, emphasis added).
Many of the postings whose authorship is sought accuse individual defendants in this
case of illegal activity. Some of these are similar to the allegations Plaintiff made against
members of the Ithaca Police Department in his DHR charges, but as unsolicited internet
postings, do not enjoy any privilege, limited or absolute.2 Whats more, they are clearly
defamatory, comprising (1) a false statement about the [defendants]; (2) published to a third
party without authorization or privilege; (3) through fault amounting to at least negligence on
[the] part of the publisher; (4) that either constitutes defamation per se or caused special
damages. Grande v. Gristedes Food's, Inc., 2011 WL 4716339, at *2 (S.D.N.Y. Oct. 7, 2011).

1

In order for the Court to understand the tenor and content of the Craigslist postings at issue,
Defendants respectfully propose that they provide copies of the postings to the Court for an in
camera inspection.
2
Cf. Missick v. Big V Supermarkets, Inc., 115 A.D.2d 808, 811, 495 N.Y.S.2d 994, 997 (App.
Div. 1985) (statements made during or for DHR proceedings are absolutely privileged).

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A court need only determine that the contested statements are reasonably susceptible of
defamatory connotation. If any defamatory construction is possible, it is a question of fact for
the jury whether the statements were understood as defamatory. Id.3 See also Beauharnais v.
People of State of Ill., 343 U.S. 250, 257-58 (1952) (No one will gainsay that it is libelous
falsely to charge another with being a rapist, robber, carrier of knives and guns, and user of
marijuana.).
The primary case cited by Plaintiff, In re Rule 45 Subpoena Issued to Cablevision Sys.
Corp. Regarding IP Address 69.120.35.31, 2010 WL 2219343 (E.D.N.Y. Feb. 5, 2010), report
and recommendation adopted in part, 2010 WL 1686811 (E.D.N.Y. Apr. 26, 2010), involved
attempts to obtain internet postings made not by the plaintiff, but by a non-party to the litigation.
The case has no bearing on the present situation.
Plaintiffs complaint that discovery has closed in the case is not well-taken, as these
postings were only recently made, and therefore could not have been subject to discovery when
the case was in that phase, nearly three years ago. Nor will Plaintiff be prejudiced by the
discovery of the subpoenaed information, as he will learn the result of the subpoena shortly after
the Defendants, and will be provided with any postings that Defendants plan to use as evidence
at the trial. Finally, the Plaintiff claims on-going emotional distress arising from the June 1,
2010 Notice of Discipline that was brought against him. These recent Craigslist postings, if
authored by the Plaintiff, are uniquely relevant to whether the Plaintiffs claims of on-going
emotional distress are meritorious.
The Defendants did not fail to confer with Plaintiff regarding the District Attorneys
investigation. Instead, this Court merely ordered Defendants to provide Plaintiff with any
written materials in their possession concerning the DAs investigation. The undersigned never
received any documents from the DAs office, but rather learned through the Ithaca Police
Department that an investigation had been conducted by the DAs office and that a number of
prior anonymous Craigslist posts, similar to the ones at issue here, had been traced as originating
from the Plaintiffs home address. Thus, there are no documents to provide.
Defendants are entitled to discover whether the internet postings at issue were in fact
posted by the Plaintiff. If they were, they are relevant to his claim for emotional distress and are
therefore relevant in the upcoming litigation. Defendants therefore respectfully request that the
Court deny Plaintiffs Motion to Quash.

It is a matter of dispute whether the defendants in this case are public figures under New
York Times Co. v. Sullivan, 376 U.S. 254 (1964), but it is in any event plain that the postings
were made with actual malice, that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. Id., 376 U.S. at 279-80.

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Respectfully submitted,
STOKES WAGNER
/s/ Paul E. Wagner
Paul E. Wagner
PEW/ns