With the explosive growth and participation in social media in recent years, it is no surprise that the Courts in New York have been called upon to determine whether a party's social media information, most commonly Facebook account information and entries, must be disclosed to the opposing party during the discovery phase in personal injury litigation.
The Appellate Division, Fourth Department held in McCann v. Harleyville Insurance, 78 A.D.3d 1524 (4th Dept., Nov. 12, 2010), that the defendant was not entitled to the plaintiff's entire Facebook account information and entries. The defendant had demanded disclosure of all photographs and sought an authorization for plaintiff's Facebook account. Although the defendant insurance company argued that the information was relevant to the plaintiff's injury claim, the Fourth Department affirmed the Erie County trial court's denial of the motion as overly broad, without prejudice to serve "new, proper discovery demands". The Court cautioned that the defendant may not use demands for a "fishing expedition" in hope of finding relevant evidence. However, the Court did hold that a protective order in favor of the plaintiff was an abuse of discretion and that the defendant should not be prohibited from seeking disclosure of plaintiff's Facebook account on a future date.
More recently in Patterson v. Turner Construction, 88 A.D.3d 617 (1st Dept., Oct. 30, 2011) the Appellate Court struck down the trial court determination that required a party to reveal all Facebook records in an auto accident claim. Instead, the Appellate Division directed that the lower court restrict the plaintiff's Facebook information to only that which is "relevant in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities and losses, and other claims."
The Patterson case basically requires the lower court to do an in camera (private judicial) inspection of Facebook records to ascertain what is "relevant" to plaintiff's alleged restrictions, disabilities and losses in the particular case before the court. The court compared the Facebook account information to entries in a personal diary; if relevant, both types of information are discoverable.
In summary of these two recent cases, it seems the requesting party is required to show a "factual predicate" to demand Facebook records, and then have the court determine through an in camera review of the records whether the information is relevant and must be disclosed as part of discovery in a civil claim. So, although the opposition is not entitled to carte blanche access to Facebook information and entries, information that is arguably relevant to any issue in the case will be disclosed.
There is an age-old axiom that still rings true in this digital age: do not publish or write anything, whether on paper or in cyberspace, that you would not want blown up and presented to a jury in court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
