Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notices of Motion and Memorandum of Law 1 Order to Show Cause and Affidavits Annexed Opposing Affidavits and Memorandum of Law 2 Replying Affidavits 3 DECISION & ORDER BACKGROUND On March 20, 2015, Plaintiff commenced this action in Supreme Court, New York County against Defendants Hudson Hotel, Hudson Lease Co. LLC, Morgans Hotel Group Co., Morgans Hotel Group Management LLC, Morgans Hotel Limited Partnership and Henry Hudson Holdings LLC. Plaintiff alleges that, as a result of defendants’ negligence, she stepped on broken glass in the hotel bar of the Hudson Hotel on May 13, 2012 which caused “severe and serious personal injuries to [her] mind and body” (NYSCEF Doc. No. 1 [Compl. 147]) such that she has been partially or totally disabled from that date through the present (NYSCEF Doc. No. 16 [Bill of Particulars
4-5, 13-14]). On or about June 24, 2015, defendants served plaintiff with a Notice for Discovery and Inspection of Social Media, seeking, inter alia, “color copies of Timeline Photos posted to Plaintiff’s Facebook account from May 13, 2012 to present” (NYSCEF Doc. No. 6 [Notice for Discovery and Inspection of Social Media]). On September 12, 2016, defendants moved to compel the production of this material (NYSCEF Doc. No. 35). By Decision and Order dated February 14, 2017 (the “In Camera Order”), the Supreme Court of the State of New York (Hon. Barbara Jaffe) ordered that: As plaintiff alleges total and partial disability, and injuries of a permanent and lasting nature to her left foot, including loss of sensation, numbness, nerve damage, and loss of range of motion, the photographs of plaintiff in her Facebook profile are probative of the issue of the extent of her alleged injuries to the extent they relate to or show the condition of her left foot. Accordingly, plaintiff is directed to provide the following for an in camera review inspection within 30 days: all status reports, emails, photographs, and videos posted on plaintiff’s Facebook page/profile from the date of the accident to the present (Richards v. Hertz Corp., 100 AD3d 728 [2d Dept 2012]). Defendant’s motion to compel granted to the extent above, and plaintiff’s cross-motion for a protective order [is] denied (NYSECF Doc. No. 59 [In Camera Order]). Plaintiff provided this material to Justice Jaffe and, following an in camera review of same, the Court issued a supplemental Decision and Order, dated July 18, 2017 (the “Production Order”). (NYSCEF Doc. No. 61 [Production Order]). The Production Order directed Plaintiff to produce to defendants a total of 135 Facebook posts. One hundred of these Facebook posts included attached photographs while eleven of the Facebook posts included attached videos (Id.). On or about August 10, 2017, plaintiff provided defendants with black and white, low resolution screenshots of some of the Facebook posts listed in the Production Order (NYSCEF Doc. No. 96 [Plaintiff's August 10, 2017 Production]). Unsatisfied with this production, defendants served plaintiff with a so-ordered subpoena, dated August 8, 2019 (the “So-Ordered Subpoena”), which ordered plaintiff to produce full color copies, in digital format on DVD, CD or USB flash drive, of every one of plaintiff’s Facebook posts, including full resolution, uncropped photographs and complete comment threads, identified in the [Production Order] (NYSCEF Doc. No. 85 [So-Ordered Subpoena] [emphasis added]). Plaintiff responded to the So-Ordered Subpoena by producing approximately 111 high resolution Facebook posts (NYSCEF Doc. No. 99). It is undisputed, however, that plaintiff has not produced the following eight Facebook posts listed in the Production Order in any form: Post dated September 5, 2012, at 7:34 a.m.: “Last day in the hamptons” (Production Order, 117) Post dated July 15, 2013, at 12:04 p.m.: “doggy road trip” (Production Order, 71) Post dated November 14, 2013, at 7:53 p.m.: “Fundraiser at MeltKraft for Typhoon Haiyan Victims” (Production Order 59) Post dated March 29, 2015 at 4:41 p.m.: “Role Over — Rutgers MFA” (Production Order, 37) Post dated June 7, 2015, at 5:14 p.m.: Photo, swimming at “Michaels friends house” (Production Order, 36) Facebook post dated February 6, 2016, at 12:08 a.m.: “Vail” (Production Order, 23) Two posts dated February 8, 2016, at 12:41 a.m. and 12:45 a.m.: “Vail” (Production Order, 21) (NYSCEF Doc. No 61 [Production Order]). Defendants also note that plaintiff failed to comply with the So-Ordered Subpoena’s directive to produce high-quality versions of the following thirteen Facebook posts listed in the Production Order: Five posts by Jennifer Poltorak dated September 18, 2012 with Plaintiff tagged in each photo (Production Order, 112) Post dated June 20, 2015, at 9:29 p.m.: “Rachel and blaze wedding” (Production Order, 35) Post dated July 13, 2015, at 5:06 p.m.: Photo (Production Order, 34) Post dated December 26, 2015, at 10:43 p.m.: “Christmas eve in NYC” (Production Order, 29) Post dated January 25, 2016, at 9:12 p.m.: Photo, captioned “night skiing” (Production Order, 28) Post dated February 4, 2016, at 1:07 p.m.: Photo, captioned “My hubby” (Production Order, 27) Post dated February 6, 2016, at 12:08 a.m.: Photo, captioned “no filter needed” (Production Order, 24) Post dated February 8, 2016, at 12:41 a.m.: Photo, “Last day in vail” (Production Order, 22) Post dated June 12, 2016, at 4:32 p.m.: Photo, roller skates with comment, “How did you do?” (Production Order, 19) (Id.). Plaintiff concedes, in her affidavit in opposition to the instant motion, that she cannot produce the eight outstanding Facebook posts or higher quality versions of the 13 Facebook posts mentioned above because: [d]uring the course of the litigation, it was brought to my attention that a Judge had ordered production of a number of Facebook posts and videos from my account. I granted access to my attorneys to facilitate this disclosure. Subsequently, I was informed by my attorneys that they had produced the posts to the court. At that time on my Facebook account were photographs posted by other individuals, as well as photographs depicting my ex-fiancé. Thereafter, some photographs were deleted from my account when other individuals deleted posts they had made, and photographs they had posted on my account. In addition, I inadvertently deleted photos which were related to my ex- fiancé (Safer Aff. in Opp. at
