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Be as specific as possible in seeking Social Media discovery.

March 18, 2014 • Posted By Joseph A. French • Complex Litigation

Reid v. Soults 2014 NY Slip Op 01307 (App. Div., 2nd Dept.).

In the evolving law regarding production during discovery of a party’s social media submission, the Second Department recently weighed in on the issue. In a Westchester County medical malpractice action, the defendant had been rebutted in their efforts to obtain a videotape compilation of plaintiff that his brother had placed on YouTube.  This video purportedly depicted aspects of plaintiff’s pre-hospitalization lifestyle.

The court noted that the CPLR must be liberally construed “to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and producing delay and prolixity; the party seeking discovery must first satisfy the threshold requirement that the disclosure sought is material and necessary, and a party seeking disclosure is “sought or required” from such nonparty witness”. (citations omitted).

Although appellants demonstrated that the requested discovery may be relevant to issues of pecuniary loss and life expectancy, the papers submitted in support of, and in opposition to, those branches of the appellants’ motion were “insufficient to make a determination as to whether the requested discovery was in fact relevant to those issues”.  Thus, the case was remitted back to the lower court for in-camera review of the compilation.

Thus, if seeking social media context or videotape, the practioner is advised to draft a motion that makes the relevant argument strong and pertinent to the issue and reason the discovery is sought.