The quest for social media through discovery is still relatively new. While most courts acknowledge a privacy interest in the world of cyberspace and require defendants to establish a factual predicate for disclosure, some courts simply apply the rules applicable in traditional discovery disputes. In Wilson v. Fantastic Trans., the plaintiff alleged personal injuries that prevented from teaching her dance class. The defendant requested access to her Facebook account because the account might contain information relevant to her alleged injuries. Although the court did not cite any publicly available content in the plaintiff’s Facebook profile, it nevertheless ordered the plaintiff to produce all content depicting her dancing or teaching her class. In other words, the defendant was allowed access to potentially relevant information; no more, no less. But the Nassau County Supreme Court’s decision in Wilson appears to be the exception to the rule.
A textbook example of the approach taken by most courts is Pereira v. City of New York. There, the plaintiff alleged that he was injured after being knocked to the ground while working as a superintendent on a construction site. During the discovery process, the defendants demanded access to the plaintiff’s Facebook and MySpace profiles. The plaintiff objected, claiming the request was overly broad and unlikely to lead to the discovery of admissible evidence. Fortunately for the defendant, there were publicly available photographs from the plaintiff’s Facebook profile and a hockey blog depicting him playing golf and hockey. Based on these posts, the court granted the defendant’s motion to compel. The court displayed some concern for the plaintiff’s privacy, however, and ordered an in camera review of the plaintiff’s social media profiles.
Publicly available social media content that contradicts a plaintiff’s allegations is usually sufficient to open the door to the private areas of an online profile. But sometimes, plaintiffs are willing to lend a helping hand. In Paccione v. Bradica, not only did the plaintiff’s Facebook profile show materials contradicting claims about his physical injuries, they also contradicted his sworn deposition testimony about vacations he had taken and fights he has been involved in. Based on discrepancies in his deposition testimony, the court ordered an in camera review of the plaintiff’s Facebook profile to determine if the private areas of the account contained information relevant to the issue of plaintiff’s injuries. The court recognized that “a plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel a plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.” But because the publicly available content on the plaintiff’s Facebook account contradicted sworn testimony, the court ruled that discovery into the private areas of the plaintiff’s account was warranted.
Courts may show some concern for a plaintiff’s privacy during discovery, but once the publicly available information opens the door to disclosure, the door may swing wide open. In Jennings v. TD Bank, the court ordered the plaintiff to provide access to the private areas of her Facebook account because the publicly available photographs showing her in front of a cruise ship established the factual predicate necessary for a defendant to obtain access to the private areas of the plaintiff’s social media account. Recognizing plaintiff’s privacy interest, the court ordered an in camera review, but the scope of the disclosure was sweeping. Not only was the plaintiff required to provide access to her private areas of her Facebook account, the court also ordered her to send an authorization to Facebook to retrieve the deleted materials as well.
The message of these cases is to avoid blunderbuss discovery requests for social media data. You must first do your homework: Search for publicly available data that calls into question some aspect of plaintiff’s case. With that App in hand, you have a much better chance of getting information from the “private” space.
*As a reminder, last month, we announced that Dennis Wade is presenting at the New York State Bar Association’s “Law School for Insurance Professionals” session on October 10, 2013. In his written submission, A Carnival for the Skeptic: Using Social Media in Claim and Defense Litigation, Dennis discussed the online carnival that is social media and the tools available to defense attorneys seeking to use what plaintiffs post online to as evidence against them at trial.
Special thanks to Michael Gauvin for his contribution to this post. For more information, please contact Dennis Wade at email@example.com.