How discoverable is a Facebook account? The courts have been all over the map as the posts from this blawg have made clear. In the case of [i]Patterson v. Turner Construction[/i], NY’s First Department grappled with this issue.
In [i]Patterson[/i], the plaintiff claimed physical injuries. Defendant demanded access. Motion practice ensued. After an in camera review, the trial court granted defendant access on the basis that disclosure would “result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.” The First Department has now reversed. It has demanded that the trial court (or defendant — it is unclear from the order who has the responsibility) provide “a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”
The moral of this story is that it if overworked (and underpaid?) trial court judges are required to perform in camera Facebook reviews, it is likely to become infinitely more difficult to obtain Facebook access. In the meantime, the best advice for defense attorneys seems to be to modify their Facebook demands to only seek access to records that “contradict or conflict with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” Of course, the resulting self-selection will be performed by plaintiff’s counsel, so…
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