View more from News & Articles or Primerus Weekly

By Alan J. De Peters, Esq.
Trevett Cristo
Rochester, New York

It goes without saying that gaining access to a plaintiff’s social media accounts is a defense counsel’s dream. The thought of pursuing all of the photographs, tidbits, status updates, Snapchat’s and emojis of the plaintiff’s true pain-free life is the stuff of legend. All of us in the defense and insurance world have heard a story or two about that fateful Facebook post or Instagram picture showing the plaintiff whooping it up on the dance floor, when he or she testified that they could barely walk at their deposition. But recently the courts in both New York and the remainder of the states generally have been very reluctant to provide any sort of real access to the defendant of the Plaintiff’s social media. But folks, in the words of the immortal Bob Dylan, “Times, they are a changing.”

As is widely known, using privacy settings, a user of Facebook and similar social media sites can control how “public” or “private” their account is. That is, certain content can be “public” such that it can be seen by any other user with an account, or “Private” where access to the content is limited in some way. For instance, Facebook allows a user to limit who can see their content to the direct connections (“friends”) and to that person’s connections (“Friends of Friends”).

In New York, the Courts have long held that the commencement of a personal injury action does not render a party's entire Facebook account automatically discoverable. See e.g. Kregg v. Maldonado, 98 A.D.3d 1289, 1290, 951 N.Y.S.2d 301 (4th Dept. 2012). Rather, the New York Court’s generally followed the rule set out by the First Department (NY City area) in Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, 958 N.Y.S.2d 392 (1st Dept. 2013),

In Tapp, the First department stated: “To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account—that is, information that ‘contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.’” Id. at 620, 958 N.Y.S.2d 392.

Several other New York courts applying this rule appear to have conditioned discovery of material on the “private” portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party's allegations in some respect. See for instance, Spearin v. Linmar, 129 A.D.3d 528, 11 N.Y.S.3d 156 (1st Dept. 2015); Nieves v. 30 Ellwood Realty LLC, 39 Misc.3d 63, 966 N.Y.S.2d 808 (App. Term. 2013); Pereira v. City of New York, 40 Misc.3d 1210[A], 2013 WL 3497615 (Sup. Ct. Queens County 2013); Romano v. Steelcase, 30 Misc.3d 426, 907 N.Y.S.2d 650(Sup. Ct. Suffolk County 2010).

Thus, discovery of the private portions of the Facebook profile or other social media account was predicated on discovery of some information on the public profile that contradicted the plaintiff claims, testimony of evidence. So a predictable pattern emerged: (1) plaintiff  is allegedly injured in an accident; (2) Plaintiff hires counsel to bring a claim/suit against the alleged negligent defendant; (3) counsel instructs plaintiff to either delete all social media accounts (which plaintiff’s hate to do because of the populations general addition to social media, which is a whole separate article) or limit all content other than their profile picture such that it can only be seen by immediate connections, i.e. Friends. This strategy effectively guaranteed that a defendant would be unable to identify any public content at all on the Plaintiff’s social media thereby depriving the defendant of the “factual predicate” needed to obtain discovery of the social media.

The Court of Appeals in New York ruled that this standard was far too high a bar for the defendant to overcome and effectively stifled necessary and appropriate discovery. In that respect the Court wrote:

“Before discovery has occurred—and unless the parties are already Facebook “friends”—the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account. Thus, a threshold rule requiring that party to “identify relevant information in [the] Facebook account” effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible—and not, as it should, on whether it is “material and necessary to the prosecution or defense of an action.”

See, Forman v Henkin, 2018 NY Slip Op 01015 (Ct App Feb. 13, 2018)

The Court went on to note that New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request for material needs only to be reasonably calculated to yield relevant information.

The Court went on to state that it continues to hold that the filing of a personal injury action is not an unlimited invitation to a defendant to obtain all social media information. Rather, the if a discovery dispute arises over the production of social media information the trial court should use its discretion to permit the disclosure of relevant and material items, while shielding other non-relevant material.

In essence, the Court seems to be saying that if the defense tailors its social media demands to obtain rationally related and temporally relevant material, those demands should be complied with. Only where the defendant’s demand truly constitutes a “fishing expedition” will they be precluded.

It is out judgment that all defense counsel and their clients should immediately begin re-writing their social media demands to adhere to this standard. If a case is in suit, a new demand should be made., If a new case comes in, a revamped demand should be served.

While it is certainly early days after this ruling, and while we expect to see any number of cases interpreting it in the coming months and years, there can be do doubt that the social media door is opening, and you cannot un-ring that bell.

While this opinion is only controlling precedent in New York, we expect that this decision will be used as persuasive authority through the country’s state court systems and in federal court.

Alan is a partner with Trevett Cristo P.C., in Rochester, New York and an experienced trial lawyer litigating all across upstate New York. He has substantial experience across a broad range of practice areas, including insurance defense and coverage litigation, commercial litigation, personal injury and landlord and tenant law. Having grown up in the construction industry, Alan has developed a particular focus on litigating construction defect and premises liability cases and cases involving architectural and engineering claims. In addition, Alan also concentrates his practice on issues surrounding contractual and common law indemnification; a topic on which he writes and presents frequently. He regularly assists clients in litigating such indemnification claims, including the recoupment of legal fees.

Alan can be reached for questions at (585) 454-2181 or by e-mail at Adepeters@trevettcristo.com.