KayDenmark

3 hours ago, KayDenmark said:

My question still stands, though: did Finlay authorize Waterbury to do anything on his computer beyond check her own email?

If he didn't, is the information she was not authorized to collect admissible in civil or criminal court? 

 

1

Slow day at work, so I'm answering my own question.  

According to this article published on the website of the American Bar Association by a New York State-based lawyer, "Just because a lawful owner of a device consents to its examination does not necessarily mean every digital file stored on the device is fair game to inspect—i.e., falls within the scope of the owner’s consent.....Lawyers and investigators need to be sensitive to how a lawful authorization to search may subsequently implicate the rights of third parties, who may have a reasonable expectation of privacy that could be invaded."

It's a long article without a distinct conclusion, and as a layperson I certainly can't claim to understand all its nuances. 

https://www.americanbar.org/groups/professional_responsibility/publications/professional_lawyer/2016/volume-24-number-1/forensic_examination_digital_devices_civil_litigation_legal_ethical_and_technical_traps.html

8 hours ago, Pique Arabesque said:

He probably knew about the feature, but just didn't care. Or didn't think that *those* texts would pop up. I don't see any reason to suspect that she was snooping around.

I'm the owner of both a MacBook and an iPhone.

Assuming you are signed in with your Apple ID, the most recent text sent by you or someone else pops up on a MacBook. If you have a text window open, you can also see other messages from that most recent conversation - right now on my laptop, for example, you can see about 10 lines of back-and-forth text between my teenage daughter and I. It's visible to anyone who opens my laptop.

What's not visible, however, is what happened before or after those 10 lines. My text messages with other friends and family are also not visible, except for their names and the first few words of the message in a column off to the side. ("Thanks! It was a pleasure to have you join us" is about the length we're looking at.)

So yeah, in order to capture any more information than those 10 lines and names, someone would have to actively pursue that information by clicking and scrolling around. 

My question still stands, though: did Finlay authorize Waterbury to do anything on his computer beyond check her own email?

If he didn't, is the information she was not authorized to collect admissible in civil or criminal court? 

7 hours ago, Drew said:

"Oh what was she doing on Finlay's computer anyway?"  (which implies and more than implies she is a suspicious person) 

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I can't speak for others, but this wasn't what I was implying. As I'm not a lawyer, I was questioning the admissibility of evidence (particularly in a criminal case, but also in civil circumstances) of evidence that may have been obtained without consent.

If Finlay gave Miss Waterbury permission to use his computer to check her own emails, that's presumably the limit of the consent he gave her. I doubt he gave her consent to go through Finlay's own emails or old texts, or to take screen shots of them, which I presume is what she showed her lawyer.

Could someone here with a legal background explain if evidence like this is admissible in court?

To me, it sounds like a parallel to inviting a private citizen to my home, installing him in the living room, and then finding out that while I was in the kitchen making the tea he was going into other rooms and opening drawers to collect evidence.

I know that cops aren't allowed to do this without a warrant, but what about private citizens?

40 minutes ago, On Pointe said:

Model or not,  a twenty year old who didn't have her own device is a rarity.  

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But a 20-year-old who let her phone go dead because she, say, forgot her charger at home would not be a rarity.

While I generally agree with you that the way Waterbury discovered the images could be a point of contention - while SMS's "pop up" on an Apple device, email alerts show only a subject line and require an additional "click" to read their contents - she might have reason to use Finlay's computer.

It will be interesting to hear what Ramasar has to say about his actions in the explanation he has promised and what Catazaro has to say in his case for reinstatement. I assume Finlay will keep mum, since he's the only one who seems to be facing criminal charges, and "anything you say may be used against you in a court of law."

10 hours ago, cubanmiamiboy said:

There's no way to limit what a victim feels. It is what it is. Remember those famous words... "Never forget"...? It is even a popular hashtag now 

Of course, and no one is trying to limit or control Miss Waterbury's feelings.

I'm just referring to the general tone of public discourse about the case - people discussing the case but not personally involved. I dislike stereotyping and hate speech.

16 hours ago, Drew said:

Good thoughts. The only thing I would add —which may just have seemed too obvious to you to write —is that certain situations still call for taking sides—giving certain kinds of support to some humans and not giving it to others. Even standing with some and not others regarding that particular situation. 

 

Oh, sure. As I made clear in other comments, so far Miss Waterbury has the evidence on her side, the most compelling piece of public evidence being Chase Finlay's sudden resignation.

But having worked with both refugees and prisoners, I'm generally a proponent of "hate the sin, not the sinner." Condemning the (alleged) actions of these men is different from calling them names or making petty comments about their skin color or class background.  (Again, having worked with refugees and prisoners, I can confidently say there is enough bad behavior to go around from every type of person). 

I stand with humans. Both Alexandra Waterbury and Chase Finlay are humans with strengths and weaknesses, good and bad sides, gifts and faults, bad deeds and good deeds.

De-humanizing either one of them does not promote justice, kindness, or a better world.

Finlay (and Ramasar and Catazaro and the donor, etc.) may deserve punishment, but nobody deserves hatred and humiliation.

5 hours ago, balanchinefreak said:

We haven't heard from Finlay yet - we can assume (speculation here, well, sorry) that his lawyer is working overtime. But NYCB came out loud and clear very quickly - and threw their little golden boy right under the bus. Where he belongs.

 

Finlay's career is over and he faces possible criminal charges as well as potentially massive civil damages. 

His quick resignation suggests that he did something he couldn't defend, and perhaps didn't want to talk to the NYCB board because anything said to them could be used against him in a criminal case. The law has remedies for whatever he has done, and Miss Waterbury is pursuing those remedies.

1 hour ago, Drew said:

I hope her lawyers and advisors prepared her for what would happen if she didn't receive a settlement -- which presumably would have had a non-disclosure agreement attached. (At least insofar as anyone can be prepared.)

 

I wouldn't count on her lawyers to have prepared her for anything, at least not thoroughly. Their expertise appears to be creating a media storm and extracting settlements, not the psychological care of fragile complainants. I hope Miss Waterbury has substantial backup from friends, family, and others without a personal agenda in this case. 

Whether she wins a settlement or not, this is likely to be the first few pages of Google results for Miss Waterbury for the foreseeable future as she builds her career, in the dance world or outside of it.

9 hours ago, On Pointe said:

I may sound a bit harsh,  but it's nothing compared to what NYCB's lawyers will have to say if this case goes to trial.

If there ends up being a large amount of money in question, Miss Waterbury can expect to be raked over the coals in most unpleasant fashion, both by Finlay's lawyers and by NYCB's.

I assume that she and her lawyer are counting on a settlement - which, as I said upthread, she could probably win from Finlay, based on what we know now. But if Finlay or NYCB responds or counter-sues, they are unlikely to play nice.

One aspect I haven't seen discussed elsewhere on this thread is the privacy of the other dancers involved in the incidents named in Miss Waterbury's complaint - for example, the alleged victim of a rape by a principal in Vail, Colorado. Perhaps this individual is processing the incident in his or her own way and would prefer not to be hauled into a discovery process by lawyers from both sides of Miss Waterbury's suit.

The same is true for other dancer's pictures that have been shared - no matter how angry they might be about the infraction, they may not want to get involved in an energy-draining lawsuit for reasons of their own.

Is it fair for Miss Waterbury to use their experiences to bolster her own case?

15 minutes ago, Drew said:

A range of quotes follows from various figures in the ballet world including one from Jenifer Ringer--here is the link:

https://www.dancemagazine.com/alexandra-waterbury-2602545003.html?rebelltitem=1#rebelltitem1

 

Ringer's quote was classy and inspirational; the others less so.

While I don't feel comfortable discussing Alexandra Waterbury's educational qualifications outside of ballet, I do think it's worth discussing whether she's taking on too much - the reform of the entire ballet establishment - when by her own account she is emotionally overwhelmed, sleeping poorly, and barely keeping herself together.

If someone in my family was in her situation, I would advise her to concentrate on the obvious and provable miscarriage of justice, which is Chase Finlay's unauthorized photographs and unauthorized sharing of those photographs. I would suggest that she focus on a civil suit against Finlay to collect damages that would cover any psychological care she requires, and perhaps some punitive damages, keeping the possibility of criminal charges open as a negotiating tactic. That seems to me like a winnable case.

On the other hand, I would not advise a young and (by her own account) highly vulnerable young person to try to take on an uncertain and difficult case against a large institution like the NYCB. It seems to me like the people who are advising her to do so (her lawyer, various people who are after the AD job) may be using Miss Waterbury to advance their own agendas.

1 minute ago, sappho said:

This is victim-blaming.

I disagree. Miss Waterbury was 18 or 19 at the time this occurred and was an adult, although a young adult.  Adult women, like adult men, have both rights and responsibilities. They cannot expect the world around them (like their ex-boyfriend's employer) to look out for them. I also agree with OnPointe that it is questionable that Miss Waterbury says she requires acute care when she seems to be living an active, well-rounded life. 

3 minutes ago, sappho said:

And even if dancers could refuse, it wouldn't be a free choice insofar as promotions depend on casting.

This is why I specified principals, who would presumably have more power than young dancers on the rise. 

51 minutes ago, On Pointe said:

She does seem to have a case against Finlay,  but she may have put that in jeopardy by the means she used to uncover the evidence.  By her own words,  Finlay gave her the password to his computer so that she could check her emails.  He did not give her permission to go rummaging through his.

This also struck me, and it seems like it would be material to any case, whether civil or criminal. With reference to the text messages, she could argue that they "popped up" on the computer while she was using it and she couldn't avoid them. This seems unlikely with emails.  Even if alerts have been activated, usually only the subject line is visible - you have to open the email to see text and pictures.

Thank you, Kathleen86. It is so valuable to hear from someone with expertise in this type of case.

Just like Balanchinefan, I find the timeline interesting. Everyone seems to agree that the complaint was poorly written and a "rush job" as you say.

6 minutes ago, yukionna4869 said:

I'm curious as to how Merson decided which dancers to name, and which dancers remained anonymous. 

 

Merson and his team appear to be rather cunning and extremely media-friendly - in fact, Merson lists his ability to get cases featured in the media on the business website where he seeks potential clients. The fact that Ramasar is on Broadway and a slightly more recognizable name than Finlay might have been one of the reasons his name was used. Ditto for Catazaro and his Bloomingdale's endorsement deal. 

35 minutes ago, Balletwannabe said:

How does time off change someone's character?  I think it would be rather cruel to force any of the females to dance with them again.

I think the word "force" is key here. The female dancers Amar works with know him better than we do, and they can put his recent behavior into context better than we can. It's up to them to judge if they feel comfortable partnering with him, particularly if we're talking about female principals who would presumably have the standing to say "no" if they wanted to.

It's possible that one of his established female fellow principals would volunteer to perform with him when (and if) he returns to the company in 2019. My impression (from very far away) is that he is well-liked within the company as well as by audiences and critics. 

Chase Finlay appears to have had fewer friends and supporters. 

1 hour ago, Tapfan said:

If he wasn't  a participant in a high classical art, wasn't from an affluent family  and didn't look like a model from one of the old, pre-diversity,  Ralph Lauren adds, would folks use so delicate a term as  "troubled" to define Mr. Finlay?

Actually, I think Ramasar is getting off much easier than Finlay, perhaps because he's a more popular and (in my opinion) a better dancer, and perhaps because the original complaint didn't target him. But based on the complaint, he also shared inappropriate photos in the conversation. 

I must have missed that somewhere in the thread. 

Interesting that Finlay is also related to the pioneering ballerina Ruth Page, who is his dad's great-aunt. Maybe that made it more acceptable for him to choose dance as a career. His family appears to include a lot of architects and designers.

Pompous or not, I don't think Finlay's family's wealth should be relevant to this case. Chase Finlay is 27 years old and has lived on his own for many years. Unless he has a trust fund the complainant can go after, I don't think it matters that his father's "genealogical line on his maternal side goes back to the early American colonies of Middle Plantation (Virginia) (present-day Williamsburg) and Jamestown, Virginia." https://en.wikipedia.org/wiki/Mark_P._Finlay

Apropos to that, Finlay makes a storybook villain for 2018 - the arrogant white guy who thinks he can get away with anything. It doesn't help that ballet fans know him for what Alastair Macaulay calls "stuffed shirt" dancing.  A shame he played Apollo, NYCB's signature role. The Vanity Fair story almost writes itself. 

There was also some discussion earlier in the thread about sloppiness and other small errors in the complaint. 

I looked up Miss Waterbury's attorney, Jordan Merson, to see if this type of sloppiness had been seen before in his work and I stumbled over this paragraph:

"Merson primarily handles cases that have resulted in recoveries of $1 million or more and has routinely litigated those that have produced verdicts and settlements greater than $10 million. Many of his cases have gained local and national media attention and he has been quoted often in newspapers and on television."

https://www.klinespecter.com/jordan-merson.html

Finlay's lawyer is certainly outmatched. 

31 minutes ago, nanushka said:

That strikes me as a pretty tepid statement. It’s not even a claim, really, just a definition. I wonder why they didn’t go with something a bit more forceful.

This lawyer may have been a family friend or associate called in at the last minute when the Post story was about to break. I don't know if there is more than one lawyer named Ira Kleiman in NYC, but the first one I found has this listed as his expertise: "He has extensive experience in residential and commercial real estate transactions and has represented real estate developers, condominium associates and boards of co-operative corporations." http://www.briefjustice.com/

Finlay needs someone with expertise in this type of situation to deal with the allegations - although to be quite frank, I don't know how much he is really the target of the suit. He's not the one with deep pockets. 

"A lawyer for Chase Finlay, Ira Kleiman, told the New York Post the “complaint is nothing more than a mass of allegations that ought not to be treated as facts.” The lawyer said Finlay had no comment."

https://heavy.com/news/2018/09/chase-finlay/

https://nypost.com/2018/09/05/ex-nyc-ballet-dancer-joked-about-abusing-ballerinas-like-farm-animals-suit/

That's a very good point, Bcash. I'm not sure she's even interested in a dance career at this point. 

I also notice that her lawyer make sure to take a large number of "sad" photos to accompany the various articles about her allegations. We used to do this when I worked in corporate life; we'd take "happy" CEO pictures to accompany good news about the company, and "sad" CEO pictures to be used if something terrible had happened. 

Her lawyer is just doing his job, which is to put forward the best possible version of her case.

Not sure what Chase Finlay's lawyer is up to - he seems to have released a statement and then vanished.

2 minutes ago, Balletwannabe said:

I don't think it's reasonable to keep an employee after they trash a hotel room. 

I'd like to hear more information about this incident. All we know now comes from a single source. 

One of the other posters mentioned that the dancers have at-will contracts. Does that also apply to dancers who have a protected disability, such as substance abuse? 

1 hour ago, nanushka said:

The types of behavior being alleged in this case should, I think, be considered inappropriate and damaging in any work environment — law, academia, the arts...heck, even the adult film industry. I simply do not see how the frequent physical contact of dancers is at all relevant (at least, as a mitigating factor) in a consideration of this case.

(Also, what are the rules being "imposed" or even suggested that don't make sense?) 

1

There have been other posters who have written "Well, I work in an (law, academic, etc.) office and we do it this way." 

My point is that the workplaces are not directly comparable, in part because of the physical nature of the dancers' work. But also because of the long tradition of interpersonal relationships at the company. 

. Miss Waterbury has made some shocking allegations, and as Coweb noted: 

18 hours ago, cobweb said:

A lawsuit is filed from the perspective of one person, who is by definition aggrieved. That person's lawyer will naturally cast things in the light most favorable for the complainant, and worst for the party being sued. The complaint can't be considered a neutral, factual document. 

 

Finlay's behavior, and that of the other two dancers disciplined, cannot be assumed to be the behavior of every other man in the company. That's deeply unfair, not least because many men in the company are gay and presumably have a different approach to their female colleagues.

NYCB is by definition a very physical environment. People touch each other all day long as part of their work. Imposing rules meant for colleagues in a law firm or academic office just doesn't make sense. 

Miss Waterbury's allegations should be investigated very thoroughly. But they are allegations until proven otherwise, particularly where they do not concern the three men who have already been disciplined.

I think people are getting ahead of themselves when they say the entire working environment at NYCB is toxic for female dancers.