Appellate Court Allows Plaintiffs to Place Inappropriate Pictures Received From Defendant Into Evidence in New York Sexual Haras

The New York Appellate Division, First Department, ruled that a defendant in a sexual harassment case may not have broad access to the plaintiff’s social media accounts, cell phone, and text message records, or educational and employment records. Pecile v. Titan Capital Group, LLC, 2014 NY Slip Op 425 (NY App. 1st Div.) The plaintiffs allege that their supervisor, a New York hedge fund manager, “tricked” them into viewing the contents of a CD-ROM, which allegedly contained nude photos of the plaintiff’s supervisor’s wife taken on their honeymoon. The court ruled that the CD is material to the case, and is therefore admissible.

The two plaintiffs worked for the defendant, Titan Capital Group, for just over one year from March 2008 until April 2009, according to a summary of the facts in an earlier court order. 2011 NY Slip Op 31943 (NY Sup. Ct., NY County). They allege that the head of the company, Russell Abrams, gave them two CDs and asked them to have the photos developed at a drugstore nearby. He allegedly made this request to each of them separately. Upon inserting the CDs into the photo machine, the plaintiffs claim they saw topless photos of Abrams’ wife. One of the plaintiffs claimed that Abrams “smirked callously” when she gave him the developed pictures. She admitted to keeping one of the CDs but claimed that it was not intentional. Both women resigned from the company, but describe it as a constructive termination.

Abrams learned through an attorney for the plaintiffs that they were in possession of the CD, and would return it in exchange for a monetary settlement. When they failed to reach an agreement, the plaintiffs filed a complaint with the Equal Employment Opportunity Commission (EEOC) in June 2009, including the nude photos as exhibits. They alleged gender discrimination and sexual harassment. After the EEOC dismissed their claim, the plaintiffs filed a sexual harassment lawsuit in New York County Supreme Court in August 2010.

Abrams’ wife filed a lawsuit against the plaintiffs and their attorneys in August 2009, claiming conversion of the pictures and emotional distress from the publication of the pictures. The court dismissed the lawsuit on summary judgment, finding no issues of material fact in an order addressing the unusual legal question of ownership of digital records. Abrams v. Pecile, 2012 NY Slip Op 31457 (NY Sup. Ct., NY Co.)

The recent Appellate Division ruling affirmed an order made by the Supreme Court in June 2013, ordering the defendants to produce the other CDs. Since the allegation that Abrams “tricked” the plaintiffs into viewing nude photos was the basis of their entire lawsuit, the court held that the CDs are “material and necessary to the prosecution” of the case.

The court also denied parts of the defendant’s motion to compel and allowed only limited discovery. The court held that the defendants did not provide a proper basis for access to the plaintiff’s social media accounts or cell phone records. It allowed limited discovery regarding one plaintiff’s educational history related to law school since it was an issue in the litigation, as well as information related to both plaintiffs’ wage and job title history. The plaintiffs’ criminal histories, if any, are relevant and discoverable, but not juvenile offenses.

The lawyers at Phillips & Associates represent victims of workplace sexual harassment and discrimination in New York City and surrounding areas, fighting to protect their rights at the municipal, state, and federal levels. To schedule a free and confidential consultation, contact us today online or at (866) 229-9441.