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Social Networking Sites and Discovery in New York

December 10, 2010 • Posted By Douglas R. Rosenzweig • Trial Practice

Defense attorneys often suspect that plaintiffs exaggerate claims concerning the extent and nature of injuries in general and particularly how those injuries resulted in a significant loss of enjoyment of life.  In an attempt to confirm these suspicions, attorneys have long demanded authorizations for post-accident photographs, videotapes and home movies which demonstrate plaintiffs taking part in activities of daily living inconsistent with claims made in bills of particulars or during depositions.  The current battleground in attempts to obtain information which can be potentially devastating to a plaintiff’s credibility is the internet, particularly social networking sites such as MySpace and Facebook.  These sites have become such an integral part of daily life, particularly for plaintiff’s age 13-40, that plaintiffs will often post pictures of themselves without regard to the ramifications such posts may have on their lawsuit.  As such, it is critical that every effort be used to obtain this information.

While it is unethical to “friend” a plaintiff under false pretenses, New York State Court’s seem inclined, given the right set of circumstances, to require plaintiffs to provide authorizations to allow defendants to view their personal social networking pages.  Consider, Romano v. Steelcase, Inc. 2010 NY Slip. Op 32645(U).  In this case, the Court granted defendant’s motion seeking access to plaintiff’s current and historical social networking accounts.  The Court noted the longstanding rule that plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of this action and observed that other jurisdictions, such as Colorado and Canada, have required plaintiff’s to provide authorizations for their social networking sites.  The Court dismissed plaintiff’s privacy concerns since persons who sign up for social networking sites know that personal information would be shared with others, not withstanding privacy settings and because the defendant’s need for access outweighed any privacy concerns. 

However, Courts are not willing to sanction fishing expeditions into social networking sites.  In Romano, the Court required the authorization because: “In light of the fact that the public portions of plaintiffs social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her site may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”  See also, McCann v. Harleysville Insurance Company 2010 NY Slip Op. 08181 (authorization for social networking sites were denied because the Court believed that defendants were on a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence).

Given these recent holdings, defense counsel should routinely review social networking sites for public information and profiles of plaintiffs.  During the deposition of a plaintiff, he/she should be questioned at length as to whether they have a Facebook page and what information is contained therein so as to develop reasonable grounds for an authorization for the private portions of the plaintiff’s profile.  Since these pages can be deleted, requests should include current and historical pages and accounts, including all deleted pages and related information.  Such information will likely prove invaluable in any case in which a plaintiff is claiming a loss of enjoyment of life.