Last week a New York trial judge denied a defense discovery request for a personal injury plaintiff’s current and historical Facebook, MySpace, and Twitter account information.
New York Justice George J. Silver of State Supreme Court in Manhattan reasoned that simply making conclusory allegations that a party’s “Facebook account is material and necessary to their [client’s] defense” is insufficient to justify disclosure of a litigant’s private Facebook records.
Then Justice Silver talked about a Facebook “fishing expedition”:
To allow defendants access to plaintiff’s Facebook account based solely upon the fact that plaintiff testified that she has such an account would allow defendants’ to conduct a “fishing expedition” predicated upon a mere hope of finding relevant evidence…Moreover, there is nothing on plaintiff’s public Facebook page, a printout of which is attached to plaintiff’s cross-motion, that would lead one to infer that her private Facebook pages may contain information that is relevant to her claims and may le[a]d to the disclosure of admissible evidence. (compare Romano v. Steelcase, Inc. 2010 N.Y. Slip Op. 20388 [Sup. Ct. Suffolk County])
The court also denied defense requests for plaintiff’s Twitter and MySpace social media accounts, but for a different reason. During depositions conducted by defense lawyers (known as an examination before trial (‘EBT’) in New York), the plaintiff never testified that she maintained accounts with these services.
Was denying these discovery requests sensible? That depends.
The judge looked at plaintiff’s public Facebook page — her lawyers attached a copy to their pleadings opposing the defense request — and could not find anything to suggest that her traumatic brain injury claims were refuted in her public profile.
But that doesn’t automatically rule out plaintiff’s private Facebook profile items (e.g., photos, status messages, and “Likes”) from having have content that could very well be “material and necessary” to their defense. It does mean, however, that litigators might improve their chances of getting a judge to grant access to private social media profile information with artfully crafted deposition questions.
One electronic discovery request was partially granted by the court: a defense motion for plaintiff’s mobile phone records. It came with a caveat: since plaintiff testified about syncing her “daily electronic work schedule and…[electronic] work calendar from her employer,” these items were discoverable if her mobile phone carrier could produce them.
Why was the phone calendar request granted, while the social media requests denied? Plaintiff’s testified that she maintained her appointments and work schedule on her phone. Work records and appointments could shed light on the nature and extent of plaintiff’s TBI claims. Her deposition testimony, therefore, opened the door for the defense to try and gain access to this information, if the phone carrier still has it.
This case highlights how deposing litigants and defending them is a valuable skill in the age of electronic discovery.
Decision and Order (Sterling v. May),
J. Silver (N.Y. Sup.Ct., N.Y. County), Nov 22, 2011