Social Media Discovery Lessons: One New York Court’s Solomonic Ruling

In a Solomonic ruling, Manhattan Supreme Court Justice Manuel Mendez recently denied a defendants’ sweeping Notice to Admit social media account postings by a personal injury plaintiff in Carr v. Bovis Lend Lease (read the decision below). In New York, unless a party objects to another’s pre-trial Notice to Admit, they run the risk of admitting something they don’t disagree with, potentially helping another litigant through inaction. In Carr, the defendants’ Notice to Admit sought to have plaintiff admit to making Facebook, Twitter, and other social media postings online, even though plaintiff only acknowledged having a Facebook account.

Here, Justice Mendez gave each party a little victory, and perhaps a setback too.

For plaintiff, he ruled that defendants’ Notice to Admit was improperly “being used as a disclosure device,” and that it was also duplicative of the their demand for access to purported Facebook, Twitter, MySpace, YouTube, Flickr, Friendster, and LinkedIn social media accounts.

Justice Mendez also ordered that plaintiff have any opportunity to explain why defendants should not be given access to the claimed social media tools.

The case involves alleged injury claims to plaintiff’s left arm “when the door of a temporary elevator/hoist…failed to properly open” at a Manhattan apartment building when he tried to enter it. Nearly 2½ years after the incident, defendants deposed plaintiff. One month after the deposition, he granted defendants “authorization to his Facebook account.”

That is when things became complicated.

The plaintiff argued that since he had already given defendants permission to access his Facebook account, their demand for access to any electronically stored social media information was cumulative (e.g., his Blackberry) and also an invasion of his privacy.

The judge ruled, however, that since Plaintiff failed to deny that he had other social media accounts, “or provided an affidavit denying their existence,” his privacy concerns were outweighed by the defendants’ “need for access to relevant information” about his injury, which could potentially refute his claims.

Justice Mendez also suggested that plaintiff opened the door for electronic and social media discovery by “claim[ing] he cannot recall all of his user names for authorizations to obtain access to other social media accounts, and [that] this information may be maintained on the memory card or other metadata.”

The Defendants, however, also lost access to one or more other potential sources for electronic and social media discovery. The court ruled that since the “Defendant[s] ha[ve] not stated a basis for maintaining and preserving plaintiff’s cellular phone or recording devices in addition to preserving the data.” Blackberry data, voicemail, and other potential recordings were out.

What are some takeaways from the decision in Carr v. Bovis Lend Lease, et al.?:

  • A general, blunderbuss-like request for social media discovery is not likely to be successful if the party seeking it cannot establish a specific, convincing need for it.
  • If you want to obtain the broadest access as possible to the other party’s social media accounts, as well as any storage or communication devices like mobile phones, computers, and cloud-based services, you will need to make a convincing arguments about why they are necessary.
  • If either party litigating a social media discovery dispute fails to articulate a clear reason for its need or denial, they are not likely to get their way.

Read the decision below, and share your thoughts on social media discovery.

Decision and Order (Carr v. Bovis Lend Lease, et al.), New York Sup. Ct., N.Y. County (Mendez, J.), Sep. 5, 2012.

Related information
NY Judge: No Facebook “Fishing Expedition,” Denies Social Media Discovery Requests, by Joel Zand (Dec. 3, 2011).