Tuesday, December 22, 2015

Disclosure and social media.

Practice point:  This is a personal injury action in which plaintiff alleges that, while riding one of defendant's horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent in failing to prepare the horse for riding, and in maintaining and inspecting the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates, and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff appealed, and the Appellate Division vacated those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial and authorizations related to plaintiff's private Facebook messages.

The Appellate Division noted that courts consistently have required a threshold showing before allowing access to a party's private social media information.  The Appellate Division determined that defendant failed to establish entitlement to either plaintiff's private Facebook photographs or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information.  Further, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account.

Student note:  CPLR 3101(a) provides that there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.  In determining whether the information sought is subject to discovery, the test is one of usefulness and reason.

Case:  Forman v. Henkin, NY Slip Op 09350 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A missing witness charge.