More lawyers are learning the hard way that courts will not grant social media discovery requests without first laying a foundation for access to the accounts and information being sought.
A trial court judge on New York’s Long Island recently granted two different motions to strike defense requests for social media and electronic discovery in a single personal injury case (read the decision below).
The decision reinforces the idea that Facebook “fishing expeditions” are likely to be denied. Lawyers who simply ask for social media and electronic data, will be wishing they had done their homework, because without showing how and why they should be granted access to it, their requests will almost certainly be denied.
Plaintiffs alleged injuries from a slip and fall on an elevated deck at defendants’ home. Some three years after the case was filed, the defense served plaintiffs with a Notice to Admit under New York’s CPLR § 3123, seeking plaintiffs’ admission that they used “social media sites such as Facebook, Twitter, MySpace and YouTube.”
Suffolk County Supreme Court Justice Arthur G. Pitts (inset) denied the request, subtly suggesting that the defense attorneys apparently misunderstand how to conduct discovery:
It is well settled that the purpose of a Notice to Admit is to eliminate from the litigation, factual matters which will not be in dispute at trial, not to obtain information in lieu of other disclosure devices…[It] may not be utilized to request admission of material issues or ultimate or conclusory facts which can only be resolved after a full trial. It may not be employed as a substitute for other disclosure devices, such as examinations before trial, depositions upon written questions or interrogatories. Herein, the information sought by defendant [via the] Notice to Admit, would be available through other disclosure devices, including simply asking the plaintiff at his examination before trial whether he utilizes social media sites. A Notice to Admit clearly is the improper device to obtain such information. (emphasis added)
The very same day that defendants served their Notice to Admit, they they also sent a discovery and inspection request for all data on plaintiffs’ “computers, cell phones and personal digital assistants as well as anything which may have been posted by the plaintiff on Facebook, MySpace, Twitter,” and other social media sites.
Missing from the defendants’ e-discovery request, however, was any foundation laid to support it. They failed to attach deposition testimony with questions and answers to potentially show how and why access to specific social media accounts and electronic data was “material and necessary” to the case, a standard that New York discovery law requires.
The court concluded that these omissions doomed the defendants’ request. “Absent such evidence,” Justice Pitts wrote, “the plaintiffs’ motion to vacate and strike the Supplemental Notice for Discovery and Inspection is granted.”
You can read the decision in O’Neill v. Weber here:
Decision and Order (O’Neill v. Weber), J. Pitts (N.Y. Sup.Ct., Suffolk Cty), Nov. 16, 2011
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