New York, NY (January 25, 2019) - On January
24th, New York's Appellate Division, First Department rendered
an important decision that expands the ability of litigators to
obtain discovery from parties' electronic devices, including
email accounts and social media data, such as messaging apps
content and even deleted materials.
The case, Vasquez-Santos v. Mathew, 2019 NY
Slip Op 00541, which was decided by the court unanimously, involved
a former semi-professional basketball player who claimed he had
been disabled in a motor vehicle accident and could no longer play
basketball. The court, citing a February 2018 Court of Appeals decision, held
that the defense was entitled to explore photographs posted to
social media that may have shown the plaintiff playing basketball
after the accident, despite plaintiff's argument that the
photos had been taken before the accident. See Forman v.
Henkin, 2018 NY Slip Op 01015 [30 NY3d 656].
Citing Forman,
the Vasquez-Santos court ruled that the defense
was entitled to "compel access by a third-party data mining
company to plaintiff's devices, email accounts, and social
media accounts, so as to obtain photographs and other evidence of
plaintiff engaging in physical activities." The court also
said it made no difference that the plaintiff hadn't taken the
photographs. The court did rule, however, that access to those
accounts would be "appropriately limited in time, i.e., only
those items posted or sent after the accident, and in subject
matter, i.e., those items discussing or showing defendant engaging
in basketball or other similar physical activities."
This new decision will certainly be utilized in future discovery
demands and motion practice whenever social media data may provide
an opportunity to rebut a plaintiff's damages claims. With the
help of third-party vendors, litigators can now obtain previously
undiscoverable digital content that could help them establish a
lack of causality between an accident and a plaintiff's
injuries.
The plaintiff has approximately one month to file a motion to reargue or for permission to appeal this decision.
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.