Social media posts at issue in New York-New York shooting lawsuit

A Las Vegas casino is demanding that a woman turn over certain private MySpace and Facebook posts so it can determine if she’s really permanently injured from a 2007 shooting at the casino.

The woman, Carrie Zeravica of Irwin, Pa., sued the New York-New York hotel-casino in 2009, charging lax security was responsible for her injuries when a man opened fire there in 2007, injuring five people.

With the lawsuit now in its third year, attorneys for MGM Resorts International, owner of the casino, are questioning Zeravica’s claims that she suffered a permanent leg injury from the gunshot requiring her to wear a brace and that she has suffered severe emotional distress with fear and anxiety about being in crowded places and being alone.

"Despite plaintiff’s claimed damages, New York-New York has surveillance footage (from a private investigator) and social media postings in its possession which tend to prove that plaintiff is living a physically active and emotionally balanced life," the casino attorneys wrote in a filing in Clark County District Court last month.

The attorneys said an investigator in August 2009 conducted surveillance at the woman’s home and spotted her depositing a large trash bag into a garbage can, and then departing for a concert with a large cooler.

At the concert, she walked half a mile up a hill to the stadium entrance, the investigator reported.

"In the parking lot before the concert, plaintiff is seen drinking beer, talking with friends and tailgating," the filing says. "She was not observed to be walking with a cane or any observable braces."

The casino also has partial MySpace postings in which her mood is listed as "Sooooo excited" and she posted on another page that she had been having "so much fun doing everything!!"

But because her MySpace account is set to private, the casino investigators couldn’t observe everything she had posted there and Zeravica has refused to provide all of the casino’s requested MySpace and Facebook posts, the court filing said.

In its court motion, New York-New York asked that Zeravica be required to turn over Facebook and MySpace postings in which she discussed, commented on or shared activities she had participated in from July 2007 to the present.

The casino attorneys noted that the discovery commissioner in the case has already ruled such social media information is discoverable, with limitations.

"Defendant is not asking for unfettered access to plaintiff’s entire Facebook and MySpace accounts," New York-New York attorneys with the Las Vegas law firm Kravitz, Schnitzer, Sloane & Johnson Chtd. wrote in their request.

"Rather, based on plaintiff’s damage claims in this case, defendant argues plaintiff has directly placed in issue her physical activities, information about emotions and how her life is progressing since July 2007," the casino’s filing said.

The damages sought in the suit are unspecified, but are greater than $10,000.

One of Zeravica’s attorneys, E. Brent Bryson in Las Vegas, filed papers last week opposing New York-New York’s motion to compel production of the disputed social media evidence.

He called the casino’s requests a "fishing expedition" as he says they were not specifically tailored to the issues in the lawsuit.

"Plaintiff submits that there has to be some type of privacy that goes along with the filing of a lawsuit," Bryson wrote in his filing. "The plaintiff did not ask to be shot, did not want to be shot and certainly did not contribute in any way to being shot, so defendants’ discovery requests are merely an attempt to harass a young lady that has already been victimized by the defendants’ lack of adequate security personnel and policies and procedures."

"This is not an attempt to frustrate discovery in any way by the plaintiff. This is an attempt to maintain the integrity of our judicial system regarding new technology that is rapidly changing on a day-to-day basis and which should not be allowed to be used to harass, annoy or vex a plaintiff that seeks compensation for being shot," Bryson wrote in his filing.

Bryson wrote that the casino’s requests have been overbroad – for instance a demand she "provide color quality copies of all photos contained on your Facebook page in which you appear from July 2007 to the present."

This "would impinge upon the constitutional rights of others to free association," Bryson wrote. "If the request had stated `provide color quality copies of all photos contained on your Facebook of your activities where you run, jump, etc.,’ then plaintiff would have been happy to reply with such a request."

Bryson in his filing said he’s recently discussed the issue with New York-New York attorneys.

"It was discussed that defendants will attempt to narrow their requests and plaintiff will attempt to comply," he wrote.

New York-New York has scheduled a court hearing for later in the month for a ruling on its request – a hearing that may or may not be held depending on whether the parties can agree on what material will be turned over.