NY Lawyers: Conduct Social Media Discovery Before It’s Too Late – Guzman v. Farrell Building Co.


Why would a defendant litigate over four and a half years, finish conducting discovery, tell a court that it’s ready for trial, and then – only then – ask a plaintiff to admit that he posted photographs on Facebook and other social media sites?

That is the question answered in a recent New York decision by Suffolk County Supreme Court Justice Hector D. LaSalle. The case, Guzman v. Farrell Building Co., et al, highlights the consequences for a defendant who wants access to a plaintiff’s Facebook account after filing a note of issue and certificate of readiness to confirm that it is ready for trial.

Plaintiff Samuel Guzman, a construction worker, sued defendant general contractor Farrell Building Co. in early 2006 under New York Labor Law §240(1) for injuries he reportedly sustained in a two-story fall while at work building a home in the Hamptons. Cases filed under Labor Law § 240(1) impose strict liability against defendants found responsible for making sure that safety equipment is in place and operational in order to protect construction workers.

Four and a half years later, the GC informed the court that it completed discovery. It did this by filing a note of issue and certificate of readiness for trial. Soon after submitting this filing, however, the GC claimed its investigator had now found “several hundred photographs of the plaintiff that were posted to Internet media websites such as Facebook,” and others, that it believed were helpful to its case.

Despite having finished discovery, the GC served a notice to admit the purported social media pictures of plaintiff. Not surprisingly, the plaintiff’s attorneys rejected the notice. The GC then sought an order from the court “directing that plaintiff produce for inspection all computers used by plaintiff to post [] photographs, all hard drives, memory cards, cameras, and/or other media and/or storage devices pertaining to said photographs.” In other words, the GC now wanted to undertake social media and e-discovery.

The court denied the GC’s motion, chastising it for “fail[ing] to provide a sufficient affirmation of a good faith detailing its efforts to resolve the issues” before asking the court to do so. Justice LaSalle highlighted the contradictory message the defendant sent by seeking this new discovery only after indicating that it was ready for trial:

“[T]he filing of a note of issue and certificate of readiness denotes the end of the discovery phase of litigation (see Arons v Jutkowtiz, 9 NY3d 393, 411, 850 NYS2d 345 [2007]), and Farrell has failed to allege, much less demonstrate, that unusual or unanticipated circumstances developed after the filing of the note of issue which requires additional pretrial proceedings to prevent it substantial prejudice.”

More significantly, the court also granted the plaintiff’s motion for summary judgment to hold the GC strictly liable for violating Labor Law § 240(1). Remarkably, the defendant failed submit any papers opposing the plaintiff’s motion.

Plaintiff established his prima facie entitlement to summary judgment on the issue of liability by submitting evidence he was injured as a result of a gravity-related accident, and that Farrell’s failure to ensure he was provided with safety devices designed to prevent or break his fall was the proximate cause of his injuries.

Instead of refuting plaintiff’s affidavit and evidence, the defendant opted to seek social media discovery after it told the court it was ready for trial, a strategy that appears to have been fatal to the defendant’s case.

In New York, simply asking for social media discovery isn’t sufficient to justify getting access to it. Launching a Facebook fishing expedition won’t work. Nor will simply asking for it, without more.

New York Attorneys must first show the court that a social media discovery request is procedurally proper under the CPLR. Next, they must demonstrate the legal relevancy of getting access to a litigant’s Facebook, Twitter, or other social media account, explaining what they hope to accomplish.

In Guzman, defendant’s social media discovery request was, procedurally speaking, too late in the case.  It had a far better chance of success if the defendant’s investigator had found the alleged photographs of plaintiff sooner, rather than later.  More importantly, the defendant appears to have missed a different opportunity that proved fatal to its case: opposing the plaintiff’s motion for summary judgment after a plaintiff’s sworn affidavit and supporting material required the GC to oppose it, or risk losing the case.

Read the new decision in Guzman v. Farrell Building Co. here:

Opinion (Guzman v. Farrell Building Co.)