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Advocate’s View: Social media accounts, postings in discovery

John C. Nutter

A recent decision from the Appellate Division, Fourth Department, provides guidance to practitioners navigating the issue of discovery of social media accounts and postings. This issue arises with increasing frequency, especially in personal injury cases, and both sides must assess the potential impact of social media at the outset of the case.

Kregg v. Maldonado, 2012 N.Y. Slip Op. 6454 (4th Dept. Sept. 28), is a personal injury action involving a motorcycle accident. The defendants discovered that family members of the injured plaintiff had established Facebook and MySpace accounts for him and had made postings on his behalf on the accounts. The defendants then sought the entire contents of all social media accounts maintained by or on behalf of the injured plaintiff, and the trial court granted a motion by defendants to compel disclosure of the information.

The Fourth Department reversed. The court first noted the general principle that a party need not respond to overly broad discovery demands and that the appropriate remedy is to vacate the entire overbroad demand rather than “prune” it. The court cited its previous decision in McCann v. Harleysville Ins. Co., 78 A.D.3d 1524, for the principle that a request for access to social media accounts should include a “factual predicate” with respect to the relevancy of the evidence sought.

The court found that defendant had made no showing that information in the social media postings contradicted plaintiff’s claims for loss of enjoyment of life, and therefore denied the defendants’ motion to compel. However, the court’s decision was without prejudice to the service of a more narrowly-tailored discovery request. In this regard, the court gave important guidance on this issue, stating that the “proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social media based information that relates to the claimed injuries arising from the accident.”

The Appellate Division, First Department, had previously issued a similar decision in Patterson v. Turner Construction Co., 88 A.D.3d 617 (1st Dept. 2011). In Patterson, also a personal injury case, the defendants sought an authorization for all of the plaintiff’s Facebook records compiled after his accident, including any records deleted or archived.

The trial court had granted the defendants’ motion to compel, after conducting an in camera review and determining that at least some of the postings were relevant to the claims at issue, including claims for physical and psychological injuries, inability to work, anxiety, and loss of enjoyment of life. The First Department reversed, finding that it was “possible” that not all of the postings were relevant to the claims and remanded for a more specific identification of postings that were relevant, i.e., that contradicted plaintiff’s claims and alleged restrictions.

Several principles are set forth in these cases. First, a general objection by the producing party on grounds of privacy will not suffice. Courts are typically treating social media as they treat other forms of information, such as emails, diaries, journals and videos, in that relevant information will generally be discoverable.

Second, the party seeking social media discovery will not be allowed to make a blanket demand for all such information at the outset of the case. Rather, the requesting party may need to conduct initial discovery to identify whether social media accounts exist which contain information which is relevant to the dispute. It may be necessary to obtain this information through a deposition.

Of course, that approach could lead to a second deposition of the same witness to discuss relevant social media postings that are later produced. At a minimum, any request for social media communications should be drafted with specificity and relate to the claims at issue.

Two recent trial court opinions provide examples of these principles in practice and illustrate the care that is required in responding to demands for social media information. In Loporcaro v. Sciascia, 35 Misc. 3d 1209A, a personal injury case, the Supreme Court, Richmond County, granted the defendants’ motion to compel discovery of the injured plaintiff’s Facebook account.

The court held that defendant had made a sufficient showing that the plaintiff’s Facebook account may contain relevant information with regard to plaintiff’s claim to have been incapacitated and confined to bed or home following the accident.

However, having granted the motion, the court implemented a procedure which could protect the plaintiff from blanket disclosure of his account. Instead of ordering the material simply turned over to defendants, the court ordered plaintiff to produce active and deleted Facebook postings to the court for an in camera review to assess the relevance of the evidence.

In Romano v. Steelchase, Inc., 30 Misc. 2d 426, another personal injury case, the Supreme Court, Suffolk County, took a slightly different approach. There, defendant reviewed public portions of plaintiff’s Facebook and MySpace pages and contended that the pages revealed that plaintiff had a more active lifestyle than her claims in the case indicated.

The defendant sought to question plaintiff at deposition regarding her accounts, to no avail, and then sought authorizations to obtain full access to the accounts. The court granted defendant’s motion and ordered plaintiff to provide authorizations permitting defendant to access plaintiff’s Facebook and MySpace records, including any records previously deleted or archived. In making its broad order, the court noted that defendant’s initial attempts to obtain information relating to the accounts had been thwarted by plaintiff’s counsel.

Notably, Romano was decided prior to both of the Appellate Division cases discussed herein. It is possible that the more stringent showing now required by the Fourth Department would have changed the result.

Taken together, these cases indicate that a defendant does not typically have a blanket green light to discover social media accounts and must first make a showing that the account contains relevant information. Counsel for injured plaintiffs must exercise caution in responding to demands for such information and should understand that attempts to object to targeted demands without a proper basis may give rise to a disclosure obligation that is broader than necessary.

To the extent that relevant material exists and has been properly requested, plaintiffs’ counsel should request that the court limit the discovery to material relevant to the case and supervise disclosure of the material through in camera review, rather than providing an authorization for defendant to access the account itself.

John C. Nutter is an associate with the Rochester litigation law firm of Leclair Korona Giordano Cole LLP. He concentrates his practice in the areas of commercial, securities and employment litigation. He can be reached at jnutter@leclairkorona.com or through the firm’s website at www.leclairkorona.com.