In today’s social media age, plaintiffs often post photographs and other updates on social media sites that can have some bearing on a defendant’s damages case.  This issue of access to a plaintiff’s social media page is often one of discretion, left up to the trial judge on a case by case basis.

In Del Gallo v. City of New York, the defendants sought a whole host of items that plaintiff objected to, including access to plaintiff’s “LinkedIn” account.  In determining whether parties were entitled access the court utilized a two pronged test.  First, it determined whether the content in the account was material and necessary, and then it balanced whether the production of the content would result in a violation of the account holder’s privacy rights.  The court noted that to warrant such discovery, “defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s [social media] account — that is, information that ‘contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” “Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming ‘fishing expedition.'”

In Del Gallo, the plaintiff testified that she communicated with former colleagues on LinkedIn regarding her post accident condition, and communicated with employment recruiters.  Defendants argued that since plaintiff claimed that she had been “totally disabled” and “partially disabled” from working since the accident, they were entitled to discovery of plaintiff’s LinkedIn account “to learn about plaintiff’s on-line description of her employment abilities, any employment offers she may have received, her acceptance of any offers, and so forth which will help to determine the amount of damages.”  The court held that the defendants were entitled to information pertaining to plaintiff’s communications with recruiters and others, related to job offers and inquiries, searches, and responses, if any, available on her LinkedIn account.  The defendants were not, however, entitled to discovery of plaintiff’s communications with former colleagues inquiring about her condition, or to all other material on plaintiff’s LinkedIn account.

As was the case here, judges typically will not allow unfettered “fishing expeditions,” into a social media account.  They will allow a defendant access where they establish that there is information “material and necessary,” to the defense.  Accordingly, it is incumbent upon the defendants to inquire at depositions and elicit relevant information pertaining to the social media accounts, so there is a factual basis to obtain the requisite access.

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