Given the current state of social media and the focus on an online presence, it is no surprise that people often reveal a great deal about themselves through photographs and posts.  Oftentimes, even personal injury plaintiffs continue to update their social media “circle” about various parts of their life even with their lawsuit pending.  New York Courts have previously ruled that a person’s Facebook page is discoverable, but many details as to when and how are still being litigated.

In Melissa “G” v. North Babylon UFSD, et al., the plaintiff sued for personal injuries sustained as a result of sexual contact she had with one of her teachers.  As part of her claim, the plaintiff alleged she suffered a loss of enjoyment of life.  The Court explained that CPLR 3101(a) broadly mandates full disclosure of all things material and necessary in the prosecution or defense of an action.  Where a defendant shows that information on social media websites is relevant or reasonably calculated to lead to the discovery of information bearing on a plaintiff’s claim, such material must be produced.  The Court further reasoned that to warrant discovery, “defendants must establish a factual predicate for their request by identifying relevant information in [the] plaintiff’s Facebook account – that is, information that ‘contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses.’”

The Court clarified the process of selecting what portions of the plaintiff’s Facebook page had to be exchanged.  While it has been suggested that an in camera review is appropriate to determine whether certain material on a Facebook account is discoverable, “an in camera inspection in disclosure matters is the exception rather than the rule, and there is no basis to believe that plaintiff’s counsel cannot honestly and accurately perform the review function.”

Therefore, while the law surrounding disclosure of a personal injury plaintiff’s social media accounts is still developing, defendants should be mindful that the plaintiff’s attorneys will most often be the party sorting through the pictures and the posts to determine their relevance in relation to the claims made.

Thanks to Jeremy Seeman for his contribution to this post.