We previously reported on the First Appellate Department’s refusal to stay Judge Sciarrino’s order that Twitter turnover criminal defendant, Malcolm Harris’s tweets, which will allegedly contradict his defense in a criminal action. Facing the threat of a contempt order, Twitter produced to Judge Sciarrino the tweets in question on September 14. However, Harris previously brought an Article 78 proceeding against Judge Sciarrino (In the Matter of Harris v. Sciarrino, Index No. 103569/12) and filed a motion seeking a stay of Judge Sciarrino’s order that the tweets be produced to Judge Sciarrino for in camera review before production to the District Attorney. On September 27, 2012, Judge Huff denied Harris’s motion to stay enforcement of Judge Sciarrino’s order pending the resolution of the Article 78 proceeding. Although Harris argued pursuant to CPLR 7803 that Judge Sciarrino had acted outside of his jurisdiction, the District Attorney successfully countered that criminal defendants may not “interrupt their prosecutions to launch what is in essence a pre-conviction collateral attack using Article 78 as a vehicle.” Stay tuned for further updates….
Paul A. Saso is a Director in the Gibbons Business & Commercial Litigation Department and a member of the Gibbons E-Discovery Task Force.