-: SJC-13534, Camila Davalos et al. versus Baywatch Inc.
-: Okay.
Attorney Golaszewski, whenever you're ready.
-: Good morning, Your Honors.
May it please the court, John Golazewski
on behalf of the plaintiff's appellants.
In response to the certified question
from the district court, this court should do three things.
One, it should reaffirm its 2014 decision
in Harrington vs Costello wherein it said,
"The more precise way to state the discovery rule is
that a claim will accrue when a plaintiff discovers
or with reasonable diligence should have discovered
she was harmed by the defendants."
Number two, it should confirm that that holding,
which has twice been reaffirmed by this court, both in 2020
and in 2022, applies also to claims that are emanating from,
as in this case, social media publications.
And number three, it should reaffirm
that whether a particular event or events,
either in fact put a plaintiff on notice
she was harmed by the defendants,
or reasonably should have put a plaintiff on notice
that she was harmed by the defendants is generally an issue
of fact for the jury.
-: Was your law firm the law firm that was hired
by the plaintiffs to find this?
-: [Atty. Golaszewski] That's accurate, Your Honor.
-: So you did find it? -: [Atty. Golaszewski] We did.
-: Once they hired you, you found it.
Don't they have to, so it's not inherently unknowable,
that, or you have magic powers,
so why doesn't the normal three years apply?
Because they could have hired you anytime
during that three year period and you would've found it.
-: Well, I don't know that that's necessarily so, Your Honor.
The fact that they hired me.
-: Well, but you did find it.
-: Well, the fact that we did find it, Your Honor,
does not mean that it was not inherently unknowable.
My client's images-
-: Oh, please, I guess I just don't follow that.
So your clients discover,
they're worried that people are exploiting their images?
-: [Atty. Golaszewski] Correct.
-: They say, "Well, let's find out who's doing it."
-: [Atty. Golaszewski] Correct.
-: They hire very capable counsel, you find it.
The problem is they waited six years to hire you
or whatever, rather than doing it right up front, so-
-: I guess the question is upfront from what, Your Honor?
-: As soon as they have the ability
to monitor the use of their images, and-
-: [Atty. Golaszewski] How so?
-: By hiring someone like you.
-: Right, but Your Honor said upfront.
The plaintiffs don't know when their images are being used.
Their images are exploited by thousands,
thousands of companies.
-: But doesn't that suggest
that they should start policing right away then?
-: But again, Your Honor, with respect,
right away vis-a-vis what?
-: Right away once they start releasing their images
to other people that are using their images.
-: My client's images have been used lawfully
by people for decades, Your Honor.
My clients are professional models
whose images are licensed and used for decades.
-: So this goes back decades then?
-: The claims here,
I believe the first advertisement was 2013 or 2014.
-: Right, so but you're saying
that your client's pictures have been used for decades,
so why not go back the other 30 years then?
-: [Atty. Golaszewski] In terms of?
-: Go back even longer than-
-: And well, maybe so, but the question is
what does reasonable diligence mean here?
That is, under Your Honor's, maybe I'm misinterpreting,
under Your Honor's suggestion,
the day a professional model decides to license her image
to company A lawfully, she then has some duty of inquiry
to make sure that no other company
in the world is using her image, and I don't know about-
-: Oh, she just has a three year statute of limitations
to enforce misuse of that image.
-: Well, again- -: Go ahead.
You understand my question.
-: I do, but when we're talking about the discovery rule,
what we're talking about is reasonable diligence.
-: If inherently unknowable means
that plaintiff's counsel could not have found it,
would we ever have a suit?
I mean, that is, it seems that the test cannot be,
aha, your lawyer found it, and therefore,
you're not entitled to the discovery rule.
I mean, the discovery rule must mean something,
-: Which is exactly right, and again,
what we discuss in our reply papers is
that the defendant's position is
that no publication ever, whether it's online generally,
whether it's on social media, whether it's in a newspaper,
whether it's in a magazine,
the discovery rule can never apply,
and that is simply antagonistic to what this court has held
since at least the Flynn case in 1988.
That is in Flynn, this court did not say-
-: Well, there's a difference between cancer.
It's inherently unknowable.
You get cancer, and you don't know you have cancer,
'cause it's not gonna manifest itself.
That's a lot different than, you know, having your picture
on the internet in a publicly disseminated site.
There's a difference.
It's not just whether a lawyer can find it,
but whether at the time it's findable.
-: Well, again, I'm not sure
what the term publicly disseminated means
in this case, Your Honor.
-: Aren't these websites, they're open.
That's how they attract business, right?
It's not like there's some kind
of privacy protection of these websites.
They're open for business, right?
-: I disagree with that.
They are concealed under the definition of Wolsfelt,
insofar as that they are not discoverable
vis-a-vis a search engine query.
-: Yeah, can I ask you about the steps to discover it?
And I think, you know, Justice Wendlandt makes a great point
that we'd never have,
we'd perversely penalize plaintiffs for bringing suit.
But anyway, to get to these,
to discover this information, you would have to go on
to all these clubs in various areas
and then look at their Facebook pages to get that.
-: The only way to find it, that is exactly right.
-: What you can't do is a Google image search.
-: Absolutely not, and I think-
-: And this has to do with the reasonableness of diligence,
so basically your plaintiffs,
your clients would have to go into every club in Oklahoma
to see whether or not every club in Oklahoma has,
or what clubs in Oklahoma have used these images
on their Facebook pages.
-: That is precisely right, and I think it's important
in light of in the opposition,
this reference to this Facebook facial recognition software,
which A, has no bearing on the certified question response,
and B, is not accurate, because there is no evidence
that you can find an image that is in an advertisement
or is in a flyer.
That facial recognition is talking
about when a friend uploads a picture
of a friend to Facebook, and that-
-: These are local clubs advertising these images
on their own Facebook pages?
-: [Atty. Golaszewski] I'm sorry, say that again, Your Honor?
-: These are local clubs advertising these images,
stealing these images for their own Facebook page?
-: That's exactly right. J. Gaziano: Okay.
-: And importantly, and keeping them up.
You know, when we're talking
about generally the reasonable diligence inquiry
in the defamation context, for example,
you have a news publication,
and maybe it got a lot of press and maybe it didn't.
That's sort of the Flynn case.
The libel is published, and then the next day,
there's additional news that comes out.
Here, they are using these images for years.
They are reaping the benefit of these images for years.
-: Newsprint is easier now, because there's Google Alert,
and you can figure out if the "Boston Herald,"
unlike the case that's cited, where you should know
what the one of "The Boston Daily" said about the client.
Here, you have Google Alert.
You could know this easily.
-: Well, I have a related question, so would you agree
and concede that if technology advanced such that we got
what I'm gonna call super Google,
like a sort of a image search that was omniscient, right?
And so your clients could,
because they're professional models
who license their photographs, could easily,
just like having a Google Alert for your name,
have a Google Alert for their face
that would cover such things such as different companies
all across the country's gentleman's club website.
If that tool existed, would you agree
that they probably would have to bring a claim
within three years of an image going up?
-: I absolutely agree.
That would be a much harder argument for me to make
that this is an issue of fact for the jury.
I absolutely agree.
-: So you having agreed with the extreme hypothetical,
which I appreciate, we've been asked
in this certified question,
not really to answer the question in this case,
but to say what we think, you know,
how the court should approach this question
in this new context where we have not ever written
an opinion in this context specifically,
what precisely do you think are the variables
vis-a-vis the internet, number one, which we've, you know,
the appeals court at least has addressed to a degree,
and then secondly, social media.
So you raised already the issue of the availability
of image search, and also the availability,
presence or not in Google search results,
which were noted in the Wolsfelt case.
What other variables do you think are pertinent?
-: I think there are a handful, and we lay them out,
which is, is the plaintiff a follower
of the defendant's social media?
Does the plaintiff reside in the same town as the defendant?
An example is there's a "Stoughton Journal"
that has a Facebook page.
Stoughton, Massachusetts is where this is.
J. Gaziano: Or Stoughton.
-: Stoughton, I apologize.
(all laughing)
I'm from New York, I apologize.
-: Yeah no, I kind of figured you were an out of towner.
(laughter continues)
-: If a libel on an issue of public interest was printed
on that Facebook page,
and my client was a resident of that town,
I think it's very hard for my client to say
that she can avail herself of the discovery rule.
I really do, and that's a social media publication.
So where is the plaintiff located?
Where is the defendant located?
Is the offending advertisement
or publication, is that republished,
i.e., does she have reason to know about it?
If it's published on the journal Facebook page,
but then it is picked up by "The New York Times,"
I think my client has a very hard time saying,
"I didn't know about this.
There's no way I would've known about this."
-: Counsel, could I just ask you
about the other side of the coin?
-: [Atty. Golaszewski] Sure.
-: Because even if you list all those factors
in response to Justice Dewar's question,
let's talk about your clients,
and your clients aren't in any of these groups,
so in reality, there is no statute of limitations
for your client's claims,
because you're going to turn around and say
all of these local places in Sheboygan, Wisconsin,
all of these clubs that are using my client's images,
I'll never know about it until I know about it,
because it's not on the internet.
I can't do an image search.
It's this private, not necessarily private,
but it's a social media owned account
that I'll never come across it unless,
it's not really knowable.
So what becomes, if we are looking just to Massachusetts,
what becomes of general laws chapter 260?
Where now 20 years from now,
your client who's in California comes to find out
that there's some local club in Dedham
that happened to use some picture,
and now here comes the cause of action.
What you're saying on the one hand is we are gonna destroy
the discovery rule if we do it this way,
but the price that we pay for that is we eviscerate
the statute of limitations.
-: And I appreciate that.
One issue before I answer it, which is
that my clients have testified in deposition
after deposition that they have been alerted
by fans of theirs.
I mean, we're talking about women who have millions
or tens of millions of social media followers.
They have absolutely been alerted of other people,
that is by fans, someone direct messaging them on Instagram
or Facebook, and telling them, "Hey, we saw this."
So I think right then, my client would be on notice.
So it's not just a matter
of someone coming in 20 years later.
There are many, many examples of that happening.
But on the question of do you get a,
that is, 20 years from now, could we come in and say,
"Well, there was no reason for us to know about this."
We're looking at triggers.
This is what this court has said since 1974, at least.
What is the event that was likely
to put the plaintiff on notice of her claim?
And if it happened 20 years ago,
you know, when we're not that extreme, but again,
I would defer to what this court has consistently said.
What is the event or events?
Why should she have been on notice?
-: Well, I don't know that we can consistently say,
because we wouldn't be here with a certified question
if that were the case, right?
So the issue about what to do
in this context is a little bit more nuanced than that.
So you know, you take the view
that it's not really like a defamation case
where the lever is pulled on publication.
It's not really like that.
You're looking to and saying,
"There's gotta be some trigger."
That's what I'm focused on.
And if your client happens to be not,
you don't have a large social media following,
you don't get some good Samaritan that said,
"Hey, I saw this in my local town
and I know you're half a world away,"
I'm talking about that case,
and that case under your scenario,
there is no statute of limitations, right?
-: I can see where it goes there, but again there are,
when we're looking at defamation,
and maybe the term to use is not trigger,
but when we're looking at defamation,
when you look at Flynn, you look at Wolsfelt,
you look at the Cass case that they cited,
extremely public dispute.
There was, the "Boston Herald" was writing about this,
"The Boston Globe" was writing about this,
we're talking about extreme publicity.
There was zero publicity about these advertisements,
so while I think there is a distinction
between a misappropriation, and if you look at Flynn,
what is the "gist of the action," there's a difference
between misappropriation and defamation.
But even if the court was to say, "No, we don't agree
with that, we're talking about publication,"
then I wanna know what notice
the plaintiffs would've gotten,
that is, was it extremely public?
That is, some of my clients are very well known people.
Her image was used
in a dental practice in Massachusetts.
That could easily get press,
and if that gets press and someone says, "Hey, the-"
-: If that gets press in Stoughton, and client lives in LA,
I just don't know how this is gonna work.
-: I agree that that it's-
-: And all these clients are,
they're national models, right?
They're national figures,
so this local rule doesn't make any sense, does it?
Whether if you got notice in your town,
it just doesn't seem, and also the Massachusetts case,
right at the actual article that caused the suit wasn't in,
even though the person was in that town,
the article appeared in Iowa or something like that, right?
-: Which case is that, Your Honor, I'm sorry?
-: The appeals court case.
-: The Wolsfelt, no, Wolsfelt was the,
and I may mispronounce this-
-: There are two cases, right?
I can't remember.
There's one case where there's a local publication,
but it's also republished in another state, right?
-: There's the Flynn case where the AP came down,
and it got published both in the "Boston Herald American"
and in the "St. Louis Post Dispatch."
And what the Flynn case turned on,
it turned on a few factors, but one was the fact
that there was an extremely public dispute
that was picked up by a lot of different news organizations
about racial tensions in the high school, number one,
and then number two is
that the "Boston Herald American" was available
in Flynn's hometown.
Flynn's grandfather was collecting clippings
about all the press.
They had considered bringing a defamation case
in 1978 against other entities.
He was on notice
that there was extraordinary press about this.
-: And so in your case, the equivalent would be,
okay, she lives, I don't know where your client lives,
but she lives in New York or LA or she lives Chicago,
and there's some club like his in Chicago puts it up.
Is she on notice about all the clubs
in the middle of Nebraska that are doing this?
-: She's not, but again, A, we look to the policy
behind the discovery rule, which is that is unfair
to punish a plaintiff before she knows or should have known.
And I'd also ask,
what interests are we really protecting here?
-: Well, I'm not saying there's anything honorable
about what they're doing.
I'm just trying to understand
what the statute of limitations is.
-: I think the statute of limitations is going to be based
on what she knew or reasonably should have known,
based on what events occurred,
and I agree in these situations,
there's not a specific event they can point to.
-: Is there a case like yours
that defines inherently unknowable
the way you're describing it?
-: There is not.
What I have noticed since 2014 in the Magalia Cane case.
-: Closest case to this wide, 'cause again,
maybe I'm misconceiving inherently unknowable,
but to me, it's always in the cancer
or the environmental contamination.
I may just not be familiar with it in this context.
-: Well, there's the Ortiz case, which has differences,
but it is a section 214 right of privacy claim
in which there was no talk about a single publication rule
while was reason of defamation.
Now, in that case,
the plaintiff's lawyer received certain documents,
and the court of appeals said,
"Well, that was suspicious circumstances
that would've put the plaintiff on notice."
J. Kafker: That's easy, that case.
-: Well, but in all of these cases,
and there are reams and reams, including those cases,
courts are always scouring the record.
They're always looking for the event
that would've put them on notice, and if there's no event,
then they say, and they will have an opportunity
before a jury to say, "You know what?
They have brought collectively X amount of cases,
they should have been on notice of this," and I will say,
"Well, why should they have been on notice of this?"
And that's gonna be for the jury.
Again, what we're talking about here is
deference to the jury generally.
That is the general rule here.
This is the Riley case
that Massachusetts courts show no reluctance whatsoever
to let juries decide issues of fact
relating to statutes of limitations.
That's all we're talking about here,
that the court should not be making a determination
as a matter of law that the plaintiffs in this case,
that the claims accrued upon publication,
especially when the images were being used
for years thereafter.
I see my time is up,
unless anyone else has any questions.
-: Okay, we're all set.
-: [Atty. Golaszewski] Thank you very much.
-: Thank you.
Attorney Monson?
-: May IT please the court, Chris Monson (indistinct).
Madam Chief Justice and Justices,
the Wolsfelt case is directly on point here,
and the ruling and the holding in that case is
what should be adopted moving forward
in our new digital world.
Wolsfelt is on point here because it took a look
at something that's posted in a relatively obscure part
of the internet, the "Gloucester Times."
J. Wendlandt: Weren't the parties from Gloucester?
Atty. Monson: I'm sorry?
-: Were not the parties from Gloucester
where the altercation took place?
-: Absolutely, and that's a key part of the holding is
that it was available to the plaintiff.
Facebook, where these images were posted,
is a massive, publicly available website.
-: It's not all publicly available, though.
-: Yes, Your Honor, you're correct,
but these images were publicly available.
They were not behind any firewall.
They were not behind any privacy walls.
They were all available to the public
for anybody who chose to search for them.
-: And how does one search an image on Facebook?
-: Back in the timeframe between 2010 and 2011,
Facebook offered facial recognition searches
where you could search based off of your face,
and it would identify different images
of you throughout the Facebook platform.
-: That was readily available tool on Facebook?
One just opened it up and said,
"Hey, do you wanna see, you know,
Justice Wendlandt somewhere, just go ahead
and do Facebook facial recognition"?
-: For your account,
and each of these plaintiffs had an account.
J. Wendlandt: And that's in the record?
-: Yes, Your Honor.
I think it starts at page 47 with-
J. Wendlandt: 47?
-: I'm sorry, RA 247 with "The New York Times" article.
Now, that has since been pulled down as of December.
-: Wait, you have a "New York Times" article for this?
-: And the publication-
-: Anything that's actually admissible?
-: The publication from Facebook itself on the issues.
-: Doesn't "The New York Times" article say
that what this tool was was when users had photo albums,
the tool would automatically tag people and say,
"Oh, there's Brian Jones, there's Brianna Jones," et cetera,
and they have raised,
the other side has raised the question
whether this would even apply,
this tool would've even been applied by Facebook
or whoever to an advertisement of this kind.
Is there anything in the record bearing on that question?
-: Yes, Your Honor, so there is different aspects of it.
The tool did did exactly what you talked about,
but you could also set a notice anytime
that a image of yourself was posted onto Facebook,
that you would be alerted to it.
-: But where in Facebook?
-: To any publicly available, my understanding is
to any publicly available Facebook page,
anything that was posted of you,
you could get notified of that.
-: In 2010?
-: So 2010 into December of 2021,
and then Facebook removed that feature.
-: Is there a finding of fact to this regard
by the judge who certified the question?
-: I don't believe so, Your Honor.
J. Wendlandt: Okay.
J. Gaziano: Wouldn't this be a jury issue then?
J. Wendlandt: Right.
-: Well, Your Honor, I think we have to take a step back
and start back with the beginning
on what is inherently unknowable.
And the court and the appellate courts have gone through
and repeatedly found that inherently unknowable means
incapable of detection through reasonable diligence,
not did not find it because I searched for it reasonably.
It's incapable of detection,
and that's the standard that's been applied
for more than 40 years now.
-: It seems to me that if we have this debate about whether
or not facial recognition on Facebook was available
to these plaintiffs,
this seems like a perfectly fine question
for a jury to answer.
-: I understand the position there, Your Honor.
I would say that I don't think it gets to a jury,
'cause it's not inherently unknowable without taking
into consideration even the facial recognition software.
It's not incapable of detection as-
J. Wendlandt: Through reasonable diligence.
-: Correct, Your Honor. J. Wendlandt: Okay.
-: Incapable of detection, though, not just-
-: Through reasonable diligence,
so the question is what is reasonable diligence?
-: Oh, I would suggest to the court,
and it is backed up by the case law that we cite,
reasonable diligence is when you hire somebody
to find it and they can find it,
that's not incapable of detection.
-: That runs into the same issue
that if you hire an attorney,
we would never see these cases.
-: Your Honor-
-: The discovery rule would never apply,
because by definition, at some point, you found out.
Atty. Monson: Absolutely, but-
J. Wendlandt: So that can't be the test.
-: And if I could address that,
the discovery rule would still apply.
because even if the cause
of action is inherently unknowable when it happens,
there could be a event later on
that causes it not to become inherently unknowable,
and that's when you get to the reasonable diligence
and the actual knowledge elements
of the discovery rule test.
So it's first, is this even an inherently unknowable cause
of action to trigger the start of the discovery rule?
And then was it reasonable for them not to find out
until X date, and did they actually not find out
until X date? -: And in your view,
the event is the lawsuit?
-: The event is, the initial event is the publication
of these images.
-: Right, but what's the trigger, right?
So if you have these plaintiffs who are in LA or Miami
or wherever, what's the trigger
to find out what's going on in this club?
-: Sure, and that follows the single publication rule
and the defamation side of all the cases that we've cited,
that the offense happens when it's published.
J. Gaziano: Right.
-: And to support that, you take a look at these claims,
and these claims are that these plaintiffs were injured
because people in their industry saw these images,
and that was detrimental to their career,
and they can't have it both ways.
-: Well, yeah, I mean, they can.
I mean, they can be models,
and like they don't want your club to have pictures of them.
They can be damaged by that.
J. Dewar: Without being paid.
-: Yeah, without being paid.
-: Absolutely, Your Honor,
but that's not the point I'm trying to make.
The point I'm making is if the industry saw these images
and they were damaged because the industry saw these images,
then these images are not inherently unknowable.
If people in the industry saw them-
-: Are there any, I mean, you would think there'd be,
given this seems like a widespread problem,
misappropriation of images of celebrities
and beautiful people, are there cases
that define inherently unknowable
the way you want us to define it?
Atty. Monson: Yes, Your Honor.
-: Because it's not those two Massachusetts cases
you've cited, they're different.
-: The Flynn and the Wolsfelt cases are more
about publication, but the incapable of-
-: They're saying their clients are everywhere on,
I mean, they're famous, they have a million followers,
their images are very popular,
and people like your clients are misappropriating them
and saying basically they appear
in their adult entertainment clubs.
How do they keep track of all of this?
And I just don't know how this works,
and it's not that Massachusetts case
where you live in Gloucester,
the "Gloucester Times" publishes an article,
and then it gets republished somewhere else, that's easy.
This is much more difficult, isn't it, to police?
-: I'd say in terms of geographic location,
it is a little bit trickier, but in terms
of what these plaintiffs are and what they do for a living-
-: Are there cases like this?
'Cause this seems like this should have happened some,
this statute of imitation problem should have come up
somewhere in this context.
Have you found anything to help us?
-: I found cases through California, Illinois, Delaware, not-
-: That applied the inherently unknowable
into the Facebook social media?
-: Not specific to face Facebook, I don't think.
J. Kafker: How about social media in general?
-: To website posts in general.
-: And which case is that in your brief?
Atty. Monson: Let's see.
-: Well, website posts are different, right?
I mean, obviously, you should find
in your brief where that is,
but website posts seems different than social media.
-: I would agree, and in fact, I think it weighs in favor
of the appellates in this case, Your Honor.
J. Wendlandt: Why is that?
-: Because these are plaintiffs
who make their living off of social media.
They're social media influencers.
They know these networks, they know Facebook,
they know how they work better than most of us.
They're not just- -: They know how it works,
but they aren't necessarily looking
at random gentleman's club's websites
all across the entire country, right?
-: They've been on notice since at least 2016
when they started filing similar lawsuits.
J. Wendlandt: Of these images?
-: Of these images and similar images,
and that's in the appellate briefing.
-: I thought that was the reason
that the judge reversed the prior decision.
-: Yes, the 365 cases or the causes of action
that was included in the statement
in fact was just similar claims.
We supplemented that with these specific images
that are in dispute in this case from each of the plaintiffs
that occurred at least three,
that were at least part of lawsuits
at least three years before this lawsuit was filed.
-: Are are you aware of, I recognize
that this context is a little different than many
because they are licensing their images,
they are sending the images out into the world,
and so they are on notice at least
that their images are out in the world,
which is not true for everyone.
Are you aware of any case law that is held
that reasonable inquiry efforts include
having to literally hire a lawyer
because of the nature of your situation?
Like in other words, hire someone else to do diligence
for you because it is clearly not possible
for this person to do it.
-: Yeah, I don't have anything specific
on the social media, specific to social media,
but I think the Melrose Housing case is on point on that.
It's more of a construction case
where they hired individuals to monitor the construction
and ensure that the construction was built properly.
-: I noticed that case in your brief,
and you cited a couple of others,
and the difficulty is those cases are situations
where the parties were all already
in a relationship with each other, right?
Like the house was being built or a project was being done,
and you know, they already knew about each other.
And the difficulty here is that I think you have to concede
a little bit of a needle in a haystack problem.
We're talking about images
that may be on the individual Facebook pages
of any number of clubs, and it's just not possible
for a single human to probably really in a year look
at the social media pages
of every single club in the entire country,
although obviously, these people were able to hire lawyers
who found a bunch of images.
So I just would be interested in your thoughts
on how the reasonable inquiry should happen
in this kind of context.
-: Yeah, I think in some of the other jurisdictions,
called the mass media inherently unknowable pardon.
I think California uses the mass media,
but when it's posted up-
J. Kafker: I don't find a California case in your brief.
-: I'm sorry, I don't think I put 'em in my brief here.
I have case cites for you if that's-
J. Kafker: Yeah, that would be useful
if you got a case cite for us.
J. Gaziano: You could submit a letter
if you haven't done it after argument.
Atty. Monson: Will do, thank you, Your Honor.
But in any event, the question is whether,
and it goes back to the policies as well,
whether something is inherently unknowable,
if it's out there in the world,
just like a newspaper article, even if it's difficult
to search for, even in Flynn, it would've been difficult
for Flynn to have searched through every periodical for,
you know, say, the 12 months period around the incident,
read every edition of every periodical.
It didn't matter.
What mattered was that it was publicly available
and he could have found it.
It wasn't incapable of detection, and that's the point
that I think we drive home on our brief is
that it's not so much what they knew
or how much effort it would've been to find it,
but whether it was publicly available.
-: But we can't hold individual humans responsible
for knowing the entire internet,
and particularly the entire internet
that will not come up in a Google search,
which I think we can assume
people can do Google searches, right?
So how do we draw the line between the world
of Gloucester, Massachusetts and the entire world?
-: Very good question, Your Honor.
I think it's how widely available the website is.
Facebook is widely available and publicly available,
and known to these plaintiffs.
This isn't a website that's from a foreign country
that's obscure on the black web or dark web.
It's not hidden at all, it's not behind a firewall.
It's not behind any type of-
-: I just don't know how that could be
the limiting principle, because, you know,
without getting too deeply into the technology,
we know that there are algorithms
that are going to do things that are local to you,
and Facebook is one of the largest social media platforms
that we have in the world, and so the idea
that you could be sitting someplace in California
and it would aggregate Facebook accounts in everywhere,
I mean, it presumes something
that I don't know how we're gonna write that rule,
where it's not publicly available in the sense
of you can't do a Google search on it.
There is this closed ecosystem of Facebook, that even that
as a subset of the internet is still incredibly vast.
And now plaintiffs now have to have to be tasked
with essentially constructive knowledge
of the entire Facebook ecosystem.
How is that going to really work?
I mean, again, you say that it's analogous to this case
where we're talking about the newspaper,
but how are you supposed to have constructive knowledge
of what goes on from someone in California
to what some local Facebook page is doing in Maine?
How are you supposed to, how are we gonna say that?
Help us say it, 'cause we've gotta answer this question.
So tell us how we would respond
to the district court judge in this way.
-: I'd say it goes back to the policies
behind the statute of limitations, Your Honor,
and that at some point,
we have to draw a line where litigation has to end.
-: Right, but the problem with that is
that there's exception under the discovery rule,
and so what we're trying to do is balance the reasonableness
of both enforcing a statute of limitation
and not tagging people with knowledge
that's unreasonable for them to have had.
-: And Your Honor, the legislature has,
and as I mentioned in my brief,
the legislature has consistently demonstrated
its ability to craft statute of limitations
that take out the inherently unknowable part
of the discovery rule when they see fit, and that's the-
J. Wendlandt: Right, I've got those.
-: Not not only the crimes or offenses against minors
that we cite in our brief,
but also when there is fraudulent concealment,
that statute of limitations, which is Mass general law 260.
-: Have you thought about the trademark analogy here?
So if I have a trademark,
I need to go out there and police it, right?
And so I do hire attorneys to constantly search the web,
the social media aspects,
and make sure that others are not using my mark,
because if I don't do that, I will dilute my mark.
Have you at all discussed or thought about the analogy
of that in this context?
-: It's not discussed in our brief, Your Honor,
but I think you're on a very strong footing there
that there is precedent under the trademark side
for such policing of images, especially when they're known
to be used as they are in the plaintiff's case,
as exemplified by that-
-: And how does that inform our analysis
of what is reasonable in this space,
where the plaintiffs are models who know
that their images have been misappropriated in this way?
-: I think once that knowledge is out
and that it's clear to them
that they need to start that policing,
that's enough to at least trigger,
if we're talking about a triggering event,
that's enough to trigger them to start policing
for their images as they do in trademark cases.
-: And so what we would need to do is find out the facts,
as Justice Gaziano was alluding to,
as to what tools were available reasonably
to these particular plaintiffs.
-: I'm not so sure that you'd need any more facts
than when they started filing the lawsuits,
'cause when they started filing the lawsuits,
they started clearly having attorneys who found these images
and were able to do this type of work.
So I would argue that that's the appropriate marker
to go by under that analogy.
I also wanted to, and I noticed my time is almost up here
or is up here, but it's also important the burden here,
that the burden is on the party claiming the discovery rule
to present the facts that the discovery rule applies,
not the other party.
And I think that's important to keep in mind
when responding to the certified question here,
because of the plaintiffs are the ones
who know how this was found.
They know how these images were found.
They have it through their counsel.
Two of the plaintiffs in this case have testified
they can't remember when they found it
or when they first became aware of it.
-: Well, your client's no better off.
I mean, reading your clients' deposition transcript,
your client knows nothing about nothing about nothing.
Atty. Monson: Exactly, Your Honor.
-: So you know, and who put it up?
I don't know.
Who's responsible for taking it down?
I don't know.
I mean, aren't you asking
for having your cake and eating it too?
-: I would disagree with you, Your Honor,
and state that this goes exactly to the heart
of why we have statute of limitations,
'cause the current owner,
my client right now was not the owner
at the time that these images were posted.
It was owned by his father who managed all that.
He had nothing to do with the social media
and whatnot at that time.
He doesn't know who posted them.
He doesn't know when they were posted.
He doesn't know any, as you've read the deposition,
he doesn't know anything about this,
and that's why we have the statute of limitation.
-: But he continues to benefit from the use of the images,
and so I'm assuming that the knowledge
of the father is imputed to this particular defendant.
-: I would respectfully disagree with you there, Your Honor,
and say that these images are for specific events,
Monday night football games where the Patriots are playing,
I forget who they're playing in one case
that occurred back in 2013,
and now are buried in the Facebook logs.
-: And I'm assuming there's some sort
of indemnity with the father?
J. Georges: His father passed.
Atty. Monson: His father passed, Your Honor, there's no-
-: But again, you're over your time,
but I don't know that that necessarily helps you
with what we have in the record, but thank you.
-: And I would like the letter on the cases
that you're talking about, and a response too.
If he submits cases, it'd be useful to hear from you
on whether there are cases going the other way.
Atty. Monson: Absolutely, Your Honor, thank you.
-: If you can get it in within a week.
Atty. Monson: Yes, Your Honor.