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First Department Expands Discovery of Social Media Accounts

Just last year, the New York Court of Appeals ruled in the case of Forman v. Henkin, that a litigant’s public posts on Facebook were subject to discovery.  The decision was based on the premise that any limitation on the discovery of social media accounts would run counter to New York’s “tradition of liberal discovery.” On January 24, 2019, the First Department expanded on that premise.

In the case of Vasquez-Santos v. Matthew, the First Department went further in allowing a third-party data mining company hired by the defendant to access plaintiff’s devices, email accounts, and social media accounts, to obtain information relating to the claim.  The case involved a plaintiff who was injured following a motor vehicle accident in Rockland County.  The plaintiff used to play semi-professional basketball and alleged he had to give up playing following the 2013 accident.

After the suit was commenced, the defendants were able to find photographs of the plaintiff playing basketball which were posted on his social media accounts.  When the plaintiff alleged that the pictures were of him playing basketball a year earlier, the defendant filed a motion to compel production of the metadata associated with the photos.  That plaintiff did not take the pictures himself was of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming he no longer had the photographs, did not comply with his discovery obligations.

On appeal, the First Department overruled the motion court and granted defendant’s motion to compel. The panel of judges relied on the case of Patterson v. Turner Const. Co., which held that private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”  In the case at bar, the plaintiff alleged he had become disabled as a result of the motor vehicle accident.  The court found that although plaintiff alleged the pictures were taken before the accident, the defendant should be given the opportunity to rebut such claims.  The Court found the request to be appropriately limited in time and in subject matter and therefore, the motion to compel was granted.

To read a full copy of the decision, click here.

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