A recent case, Gonzalez v. City of New York (decided by the Supreme Court, Queens County on May 4, 2015) represents yet another example of why parties to litigation – or persons who contemplate being a party to litigation – should refrain from posting on social media anything whatsoever concerning their claims.
In this personal injury case, plaintiff alleges that he injured his left knee and that as “a result of said accident and alleged injuries, he has been substantially prevented from enjoying the normal fruits of activities and his enjoyment of life is permanently impaired, impeded and/or destroyed.” Plaintiff admitted, at his deposition, that he posted a photograph of his knee on Facebook.
In support of their motion under CPLR 3126 seeking authorizations to obtain records from plaintiff’s social media accounts, defendants
attached the results of an internet search which indicates that plaintiff has social media accounts with Facebook, Twitter and Instagram … [and] attached several printouts which reveals that plaintiff made several comments regarding [his] accident, how the accident happened, his injuries, his recovery, and his activities post accident. Defendants further claim that said internet search revealed that plaintiff posted multiple photographs of his injuries on his social [media] accounts.
“This information clearly contradicts plaintiff’s testimony, and accordingly defendants argue that they have established a ‘factual predicate’ that warrants discovery of plaintiff’s social medial accounts.”
Here’s the law, as summarized by the court:
[T]o warrant discovery of private social media accounts, the defendant must establish a factual predicate for said request by identifying relevant information in plaintiff’s [social media] account, such as information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, losses, and other claims (see Tapp v. New York State Urban Dev. Corp., 102 AD3d 620; Patterson v. Turner Constr. Co., 88 AD3d 617). The Patterson court went on to hold, “plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis” to compel access to the account. The Second Department, in Richards v. Hertz Corp., 100 AD3d 728, ordered an in camera inspection of all status reports, e-mails, photographs, and videos posted on plaintiff’s Facebook profile where defendants presented material on plaintiff’s public page which contradicted her deposition testimony. However, the Court noted “absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming fishing expedition” (see Fawcett v. Altieri, 38 Misc 3d 1022[.)]
The court thus concluded:
Defendants have demonstrated that the plaintiff has posted photographs and comments concerning the how the accident happened and the extent of his injuries. Accordingly, defendants established that discovery of plaintiff’s social media account will lead, or may reasonably be calculated to lead, to relevant evidence bearing on plaintiffs claims[.]
The Court[s] have recognized, however, that a persons Facebook profile or other social media accounts, may contain material of a private nature that is not relevant, the Supreme Court should conduct an in camera inspection of all status reports, e-mails, photographs, and videos posted on the plaintiff’s social media accounts since the date of the accident to determine which of those materials, if any, are relevant to the alleged claim and injuries[.]
Defendants’ motion is granted to the extent that the Court shall conduct an in camera inspection of copies of all status reports, e-mails, photographs, and videos posted on plaintiff’s social media site since the date of the subject accident to determine which of those materials, if any, are relevant to plaintiff’s claims and injuries[.]
Although the decision only orders an in camera inspection by the court – which may result in the discovery being denied to defendants after all – plaintiff is arguably in a worse position that he would be in if he completely avoided discussing his accident on social media altogether.