Facebook Discovery Permitted in New York

Social network data is the new frontier of pre-trial discovery.  Our adversaries upload, download, tweet and post.  For some unexplained and seemingly generational reason, some people are almost compelled to share intimate details of their personal lives through their use Facebook, MySpace or Twitter.

The goal of obtaining Facebook data is easy to state but harder to implement.  The courts balance the need for material and relevant information of one party against the expectations of privacy of the other.

In D’Agnostino v. YRC Inc., the defendant developed a sound plan to obtain plaintiff’s social media postings.  Rather than serve an early document demand seeking all of the plaintiff’s Facebook postings, the defense attorney first deposed plaintiff and gained valuable admissions that plaintiff routinely posted concerns about her feelings and emotions both before and after her accident.  Once the trap was laid at plaintiff’s deposition, the defense attorney sprung into action and demanded all plaintiff’s social media postings and photographs concerning any mental, emotional or physical condition suffered by plaintiff regardless of whether posted by her or others before and after her accident.

In a well reasoned opinion, the court held that plaintiff put her physical and mental condition in issue when she filed her lawsuit. Further, plaintiff admitted that she routinely posted about her feeling and emotions on Facebook.  Accordingly, the court ruled that the defendant satisfied the two prong test for obtaining an opponent’s social media postings by: (1) specifically identifying what material was sought; and (2) establishing a factual predicate for seeking such evidence.

D’Agostino is hardly the last word on the discovery of social media postings in New York. It is an important lens into how the trial courts are dealing with discovery in this area and provides a practical roadmap to how a defense lawyer can lay the proper foundation to obtain this valuable discovery.

If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com

New Notification: PA Updates Status on Facebook Disclosures

While the phenomenon of social media continues to expand, so too does the courts’ understanding of the nexus between Facebook and discovery disclosures. As we have noted previously, the trend in both state and federal court has been to allow the defendant access to a claimant’s Facebook account for the purpose of challenging credibility. However, a recent decision from the Montgomery County Court of Common Pleas has extended the doctrine in Pennsylvania to permit the plaintiff’s investigation of Facebook for evidence of the underlying incident.

In the case of Gallagher v. Urbanovich, the court considered a motion to compel access to the defendant’s Facebook credentials following a claim that the he sucker-punched a man during a work-sponsored soccer game. Although Pennsylvania judges have ordinarily required an initial review of the party’s public information before granting such discovery, the court in Gallagher agreed with the plaintiff’s contention that Facebook is simply another source for admissible statements made by an opponent and therefore allowed unbridled access to the defendant’s account. Additionally, the court’s order implicated the potential for spoliation issues and forewarned the defendant against destructing or altering the information contained on the site.

While Pennsylvania appellate courts have yet to comment on the appropriateness of Facebook disclosures, the expanse of Gallagher is certainly noteworthy. In the absence of a uniform approach, Gallagher may have the potential to create a new standard for the discovery of Facebook evidence when material to the actual incident.

Thanks to Adam Gomez, law clerk, for this post.  If you have any questions or comments, please email Paul at pclark@wcmlaw.com.