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.
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A financial services organization is a party to a litigation in which plaintiffs are seeking information concerning business practices that impacts a number of the organization's customers.
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