Access To The Opposing Party's Facebook Account During Litigation

With the explosive growth and participation in social media in recent years, it is no surprise that the Courts in New York have been called upon to determine whether a party's social media information, most commonly Facebook account information and entries, must be disclosed to the opposing party during the discovery phase in personal injury litigation.

The Appellate Division, Fourth Department held in McCann v. Harleyville Insurance, 78 A.D.3d 1524 (4th Dept., Nov. 12, 2010), that the defendant was not entitled to the plaintiff's entire Facebook account information and entries. The defendant had demanded disclosure of all photographs and sought an authorization for plaintiff's Facebook account. Although the defendant insurance company argued that the information was relevant to the plaintiff's injury claim, the Fourth Department affirmed the Erie County trial court's denial of the motion as overly broad, without prejudice to serve "new, proper discovery demands". The Court cautioned that the defendant may not use demands for a "fishing expedition" in hope of finding relevant evidence. However, the Court did hold that a protective order in favor of the plaintiff was an abuse of discretion and that the defendant should not be prohibited from seeking disclosure of plaintiff's Facebook account on a future date.

More recently in Patterson v. Turner Construction, 88 A.D.3d 617 (1st Dept., Oct. 30, 2011) the Appellate Court struck down the trial court determination that required a party to reveal all Facebook records in an auto accident claim. Instead, the Appellate Division directed that the lower court restrict the plaintiff's Facebook information to only that which is "relevant in that it contradicts or...