Header graphic for print
New York Civil Litigation Review

New York Courts Continue to Deem Social Networking Sites Discoverable

Posted in e-Discovery and Social Media, Media and the Law

As reported in the New York Law Journal, more and more New York courts have applied a liberal standard to the discoverability of a plaintiff’s social media information in personal injury or medical malpractice claims.  How significant can a plaintiff’s social media information be to a case?  In Romano v. Steelcase, a case venued in Suffolk County, the plaintiff’s MySpace and  pages proved to be crucial.  In that case, the plaintiff claimed to have sustained permanent injuries, and as a result, could no longer participate in certain activities. However, the defendant contended that plaintiff’s MySpace and Facebook pages revealed that plaintiff led an active life, and had recently traveled to Florida and Pennsylvania. Consequently, defendant’s discovery demand requested “authorizations to obtain full access to and copies of plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”

The New York State Supreme Court, Suffolk County, found the information sought to be both “material and necessary to the defense of this action and/or could lead to admissible evidence.” Furthermore, the court explained, “in light of the fact that the public portions of plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant.

However, at least one court held that it wouldn’t allow defendants to go on a fishing expedition.  The Honorable George J. Silver, in a November 2011  New York County Supreme Court case, wrote that,

defendants’ conclusory claim that plaintiff’s Facebook account is material and necessary to their defense of the action and that preventing them from accessing the account would be in direct contravention of this state’s liberal disclosure policy does not constitute a factual predicate with respect to the relevancy of the evidence.  To allow defendants access to plaintiff’s Facebook account based solely upon the fact that plaintiff testified that she has such an account would allow defendants to conduct a “fishing expedition” predicated upon a mere hope of finding relevant evidence.

What would constitute a factual predicate?  From Judge Silver’s opinion, it would seem to be either testimony with respect to the contents of the Facebook account, and/or what is displayed on the plaintiff’s public Facebook account.  To wit, Judge Silver wrote, citing Romano,:

Moreover, there is nothing on plaintiff’s public Facebook page…that would lead one to infer that her private Facebook pages may contain information that is relevant to her claims and may led [sic] to the disclosure of admissible evidence.

Judge Silver’s opinion, while distinguishing Romano, was consistent with the holding in that case.  Specifically, even though the courts will apply a liberal standard with respect to the discoverability of social networking sites, the defendants must still establish a factual predicate for obtaining this information.  The mere fact that a plaintiff has a Facebook account does not mean that defendants have met this burden.