Legal Alert! Defendants Approve This Appellate Division Decision on Plaintiff’s Social Media – Commentary by Bryan T. Schwartz and Matthew P. Levy

On January 24, 2019, the Appellate Division First Department dealt a blow to plaintiffs’ attempts to hide their activities on social media.  In the case of Vasquez-Santos v Matthew, 2019 N.Y. App. Div. LEXIS 527, the Court held that, “[p]rivate social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’”

In Vasquez, the plaintiff, a semi-professional basketball player, alleged that the injuries he sustained in a motor vehicle accident prevented him from performing certain activities, including basketball. When confronted with photos posted on his Facebook page depicting him playing basketball, he explained that the photos were from games played before the accident.   Nevertheless, the Appellate Division held that the defendant was entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury and granted access to plaintiff’s accounts and devices, limited to those items posted or sent after the accident, and in subject matter.

The right to obtain access to a plaintiff’s Facebook page (or other social media) is not unlimited and is based on a case by case basis.  In the case of Forman v Henkin, 30 N.Y.3d 656 (2018), the  Court of Appeals, the highest Court in New York, permitted the defendant access to the plaintiff’s Facebook page and found it to be  “material and necessary” under CPLR 3101 (a), as it was highly relevant to the issues in controversy, specifically the plaintiff’s decedent’s health at the time of the accident  and prior thereto.  In deciding the accessibility to a plaintiff’s Facebook materials, the  Court of Appeals instructed the lower courts to weigh the following factors:

1. The nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account;
2. Balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder. In a personal injury case, the Court held that it was  appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.

The liberal discovery laws in New York requiring parties to disclose what is material and necessary is what Courts seem to be hanging their hat on to compel disclosure.  Based on the above factors, it is clear that Courts will be weary in ordering a plaintiff to provide unrestricted and unfettered access to their Facebook page.  That being said, a plaintiff who testifies that he can no longer play basketball (but has basketball photos on his page), cannot dance (but is seen dancing), or cannot focus for long periods of time (but writes poetry on their Facebook page), may be susceptible to having the Court order them to grant access to their full page. In this case, the plaintiff claimed that the photo of him playing basketball was taken before the accident and therefore, the court permitted a third-party vendor to examine the meta data to challenge plaintiff’s claim of when the photo was taken.  The Court, however, also said that during the inspection of the meta-data, any post- accident items discovered that depicts the plaintiff engaging in activities that contradict his claim of damages and limitations would also be subject to the inspection.

Defense counsel should be searching the various social media platforms (Facebook, Instagram, Linked In, Twitter and You Tube) upon assignment and saving any photos, videos or postings which may impact the damages analysis of the case.   Once a plaintiff provides testimony as to their inability to engage in social or recreational activities, these photos should be marked and shown to the plaintiff and questioned about any other postings that could be on their social media pages.  Based on the decisions issued thus far, the more conflicting evidence between the plaintiff’s testimony and the photos, the better your chances for gaining access.

For more information, please contact Matthew Levy at MLevy@gvlaw.com or Bryan Schwartz at Bschwartz@gvlaw.com or by phone at 212-683-7100