Seeking The Disclosure Of Social Media – Part 1

The number of people utilizing social media continues to explode.  The most recent statistics reported Facebook as having 1 billion active users.[1]  In light of the information being posted and communicated online, social media is a potential treasure trove for relevant information to be mined during the discovery process.  Additionally, as social media usage has expanded, the law has evolved to deal with the discovery issues that have come up.  Part one will examine the grounds for seeking disclosure of social media.  

A recent example at our firm about the potential impact of Facebook involved a plaintiff who was a tenant at an apartment complex in Elmira, NY having rented there for a period of time.  In early 2010, she was behind on her rent and in the process of being evicted. Plaintiff wrote a letter dated March 15, 2010 to the apartment management conceding that she was late on her rent and would be out by a certain date but also pointed out the many complaints she’d made about an icy condition from a leaking gutter outside the entrance to her unit.  She also stated that, in fact, she’d slipped and fallen on this ice on February 7, 2010 resulting in a broken tailbone.  The management company turned the claim over to their carrier who retained our firm.

The carrier declined to make any offer and the plaintiff retained counsel from Elmira, NY who prepared a Summons and Complaint and provided a courtesy copy to us and the carrier claiming negligence due to the icy condition resulting in injury to her “lower back/spine, numbness of her leg and foot…a pinched nerve in her back..”

The apartment manager had, unfortunately for plaintiff, gone onto her public Face Book page when they received the initial letter of March 15, 2010 and printed her Face Book posts from February 6, 2010 (the day before the accident) in which she posted: Stupid me…broken tailbone from falling off stool last night – LOL.  There were numerous posts below that from friends expressing sympathy for her pain and suffering.  We provided a copy of the Face Book posts to her attorneys who promptly dropped the matter.

As a general concept under CPLR 3101(a) “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof…”  While people stake a territorial claim regarding their Facebook page, the law does not general support that proposition. [2]  There is no inherent right to privacy that arises in the use of a Facebook page and the Courts have addressed the issue. 

In Romano v Steelcase Inc., 30 Misc 3d 426, 429 [Sup Ct 2010], the Court said plaintiff had no reasonable expectation of privacy with respect to her Facebook page.  Facebook policies do not guarantee complete privacy, the very nature of social networking sites is to share information. It further held that “[T]o permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

In McCann v Harleysville Ins. Co. of New York, 78 AD3d 1524 (4th Dept 2010), the Defendant appealed from an order denying its motion to compel plaintiff to produce  photographs and an authorization for plaintiff’s Facebook account information and granting plaintiff’s cross motion for a protective order. Although the court denied defendant’s request to compel discovery because defendant did not establish the relevancy of information sought, the Fourth Department held that trial court improperly abused its discretion by granting a protective order.

Furthermore, in Patterson v Turner Const. Co., 88 AD3d 617 (1st Dept 2011) the Court held that “[t]he postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, just as relevant matter from a personal diary is discoverable” (internal citation omitted) (citing Faragiano v Town of Concord, 294 AD2d 893, 894 [4d Dept 2002]). 

In a recent Third Department case, Johnson v. Ingalls 2012 NY Slip Op 03492, — N.Y.S.2d —(3d Dep’t 2012) the plaintiff was injured when she either jumped  or fell from a vehicle operated by the defendant.  Plaintiff appealed a verdict for the defendant, contending, inter alia, that the trial court erred in admitting into evidence photographs obtained from the plaintiffs Facebook account, a contention the Third Department rejected:

We further reject plaintiff’s contention that certain photographs obtained from her Facebook account were unduly prejudicial and improperly admitted into evidence. After   an  in   camera   review,   Supreme   Court  excluded  the   majority   of  the photographs   that   defendants  proffered   as  unduly   prejudicial,   cumulative   or insufficiently  probative,  but  permitted  use  of approximately  20  photos  during plaintiff’s  cross-examination.  Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two  years,  that  her  anxiety prevented  her  from  going  out  or  socializing  with friends, and  that  she  required  antidepressant medication. The photos admitted were taken over a 1  1/2 -year period beginning  shortly after the accident. They depicted plaintiff  attending  parties,   socializing  and vacationing  with friends, dancing, drinking beer in an inverted position referred to in testimony  as a “keg stand,” and otherwise  appearing to be active, socially engaged and happy.   They further revealed that plaintiff consumed alcohol during this period, contrary  to medical advice and her reports to her physicians. The discretion of trial courts in rendering evidentiary rulings is broad (citations omitted). The photographs had probative value with regard to plaintiff’s claimed injuries, their evidentiary value was properly balanced against their potential for prejudice, and we find no abuse of discretion (citation omitted).

Johnson serves as a useful reminder that the most damaging wounds in litigation are often those that are self-inflicted.  It shows the potential value of social media material for cross- examination, whether directly addressing a claim or defense, or on a collateral issue. However, an attorney must have basis for believing access will lead to relevant disclosure.

In Abrams v Pecile, 83 AD3 527 (1d 2011), the First Department denied the defendant [a]ccess to plaintiff’s social networking accounts, [where] no showing has been made that “the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.” (citations omitted).

In other words, defense requests which essentially seek permission to conduct ‘a fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence” will be denied.[3]  However, a party’s failure to establish a proper foundation for the disclosure of social media matter will not, in and of itself, preclude that party from making a subsequent application for disclosure, supported by a proper foundation.[4]

Counsel must take appropriate steps to establish a proper foundation in order for the matter to be discoverable, before the issue of admissibility is addressed.  Initially, pre-deposition discovery is paramount and useful.  A recent example with our firm involved an action was brought by the family of a young girl who had been accepted into a program at the Albany County Department of Mental Health.  There were significant issues involving medication compliance and the young woman was found naked and facedown in her apartment having died after being in diabetic coma for what was believed to be several days. 

Prior to the mother’s deposition an internet search also revealed that a Facebook page was created honoring the decedent and containing postings that could be seen as contradictory to the counseling records we had obtained. At her deposition, the mother acknowledged having a personal Facebook page, which she utilized for several years prior to her daughter’s death and being responsible for the Facebook page honoring her daughter. She also confirmed that the decedent had her own page prior to her death. The witness also acknowledged having private “chats” and instant messaging her daughter and with other people about her daughter. She also testified that she and her daughter sent text messages to each other every day.

After her deposition we served multiple demands for computer and phone records as well as Facebook authorizations for all Facebook Posts, chats, emails and photographs, including post and photographs removed and/or taken down which plaintiff would not comply with. When the assigned Judge indicated that he would grant a motion to compel such authorizations the plaintiff discontinued the entire action several weeks later.

To establish the basis for a social media discovery request, the strongest argument is to show your request is based on information available to the public, (Romano v Steelcase Inc., 30 Misc 3d 426, 429 [Sup Ct 2010]) and avoid overly broad requests while drafting the demand as narrowly as possible.   

In Romano the court granted defendant’s application under CPLR 3124, noting that the “information sought by defendant regarding plaintiff’s Facebook and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence.” The court observed that plaintiff’s “public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.” Based on the public portions of plaintiff’s social networking sites, which contained material that was at odds with her claims and deposition testimony, the court determined that “there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”

Allegations from plaintiff’s counsel that a discovery demand is overbroad and akin to a fishing expedition can be attacked of course by a factual showing of relevance or in the alternative to requesting, or agreeing to a request by plaintiff’s counsel to, an in camera review of the relevant material by the court.

In Patterson v Turner Const. Co., 88 AD3d 617 (1st Dept 2011), Plaintiff claimed damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life. The Court’s in camera review established that at least some of the discovery sought “will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims”, court held that it is possible that not all Facebook communications are related to the events that gave rise to plaintiff’s cause of action.  Therefore, the First Department reversed the order granting defendants motion to compel and remanded the matter for a “more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims”. The importance of the nature and extent of the in camera review by the trial court cannot be understated.  

In Patterson, the First Department cited the Fourth Department’s Faragiano v. Town Of Concord, 294 A.D.2d 893, 741 N.Y.S.2d 369  (4th Dep’t, 2002) a plaintiff’s written diary and explained the procedure to be followed by the trial court in evaluating whether to order its disclosure:

     [A]bused its discretion in granting that part of plaintiffs’ cross motion seeking to compel the Town to disclose the unredacted diary of a former employee of the Town without first reviewing the diary in camera. The court previously had ordered disclosure of the diary, with “any privileged, or personal, non-work related entries that have nothing to do with the occurrence herein to be redacted.” A redacted diary was provided and, in now seeking disclosure of the unredacted diary, plaintiffs have raised valid questions concerning the nature of the  redactions. We conclude that the court should have reviewed the diary in camera “to determine whether full disclosure is required and to minimize the intrusion into [the] privacy” of the Town’s former employee (citation omitted).  

In Richards v. Hertz, Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 (2d Dep’t 2012),  Plaintiff alleged that as a result of the automobile accident her ability to play sports was impaired and pain was present which was exacerbated in cold weather.  Court held defendants, by demonstrating that plaintiff had posted on her personal webpage on Facebook pictures of herself skiing which post dated automobile accident, made sufficient showing that portion of plaintiffs webpage that was blocked by privacy setting might contain other evidence relevant to defense of lawsuit, and that allowing defendant access to this portion of plaintiffs webpage was reasonably calculated to lead to discovery of relevant information.  However, due to likely presence on that portion of webpage blocked by privacy setting of material of private nature that was not relevant to lawsuit, the Court held that the trial court had to conduct an in camera inspection of all status reports, e-mails, photographs, and videos posted on webpage since date of accident to determine which of those materials, if any, were relevant to her alleged injuries.

A recent Second Department case, Fawcett v. Altieri, 2013 NY Slip Op 23010 (Supreme Court, Richmond Cty., Justice Joseph J. Maltese 2013) has pushed back somewhat on the concept of pursuing in camera reviews. After a lengthy analysis of relevant case law, as well as a discussion of Facebook privacy settings, Justice Maltese denied, with leave to renew, the parties request for social media disclosure pending completion of the relevant depositions:

The party requesting the discovery of an adversary’s restricted social media accounts should first demonstrate a good faith basis to make the request. 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,” which the courts ought not condone. Moreover, asking courts to review hundreds of transmissions “in camera” should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim. While several courts have frequently assigned the “in camera” review to “special masters,” the fees to be paid those special masters should be paid by the party seeking such discovery in a tort case, but which may be shared by the parties in a commercial or matrimonial matter.

With the volume of cases pending before our courts, simply requesting authorizations for all social media from all or most of the litigants will create an unmanageable volume of documents to be reviewed in the hope that some information directly relevant to the case will be uncovered. More likely, the information obtained would be irrelevant to the actual facts of the case, but may be used in an attempt to discredit the adversary with collateral matters.  As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.

Therefore, the parties should proceed to discover the facts of the case by way of depositions or other investigatory or surveillance means.

The key is to not over reach with initial demands. In Kregg v. Maldonado, 98 A.D.3d 1289, 951 N.Y.S.2d 301 (4th Dep’t 2012) the Court held in this motorcycle accident action that D’s discovery of all social media account records concerning plaintiff’s son (the injured party) was overbroad. It noted that request for access to accounts was made without factual predicate with respect to relevancy of the evidence, as there was no contention that information in accounts contradicted P’s claims for diminution of enjoyment of life.

When there is a sufficient factual showing that defendant’s are entitled to access to plaintiffs Facebook account, the Court can appoint a Special Referee in accordance with CPLR 3104 to make an in camera review of the account to determine what, if any, of its contents should be disclosed. Bianco v. North Fork Bank Corporation, 2012 N.Y. Slip Op. 32611 (Supreme Court New York Cty.) (Ling-Cohan, J.)  As demonstrated, the absence of such showing will result in a likely denial of a request. Tapp v. New York State Urban Dev. Corp., 2012 NY Slip Op 00547 (1st Dep’t. 2013).  

In Tapp, a personal injury action, the trial court denied the defendants’ motion to compel an authorization for plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived, and the First Department unanimously affirmed:

The motion court correctly determined that plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage. To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account- that is, information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (citations omitted). Defendants failed to identify relevant information.

Defendants’ argument that plaintiff’s Facebook postings “may reveal daily activities that contradict or conflict with” plaintiff’s claim of disability amounts to nothing more than a request for permission to conduct a “fishing expedition” (citations omitted). 

An interesting example of overreaching can be seen Winchell v. Lopiccolo, 2012 NY Slip 22337 (Supreme Court, Orange Cty. 2012). In this  personal injury action, plaintiff alleged in her Bill of Particulars that she suffered various injuries, including physical injury and “mild traumatic brain injury,” “blunt facial and head trauma,” “persistent ecchymosis in the forehead,” “impaired cognitive functioning,” “cerebral dysfunction,” “motor organization deficit,” “memory impairments” and “difficulty concentrating:”  Defendant served disclosure demands for plaintiffs social media demanding an  authorization for access to Plaintiffs Facebook page, which plaintiff objected to and motion practice ensured.

The defendants argued that they sought an authorization to access Plaintiff’s Facebook page for the purpose of discovering what it reveals about Plaintiff’s “ability to portray cognitive function.” The Defendants alleged:

“the layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof, would be useful in the defense and/or assessment of this case.”

The manner in which Plaintiff uses her Facebook page, including photo layouts and captions, expressiveness of language and lucidity of her statements will illuminate the nature and extent of her claimed neurological and psychological injury.

After discussing the dearth of case law, the court noted “[d]iscovery in this area is nonetheless governed by the same legal principles that guide more traditional forms of discovery and, as one court put it, “digital fishing expeditions’ are no less objectionable than their analog antecedents.” (Citation omitted).  The party demanding access to social networking accounts must show that the method of discovery will lead to “the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the claims.” (citation omitted). The requesting party must “establish a factual predicate with respect to the relevancy of the evidence.” (citation omitted).  The Court is troubled by the breadth of Defendants’ Request for authorization for Plaintiff’s Facebook page because it seeks unrestricted access. While the Court recognizes Defendants’ attempt to establish a factual predicate for their request, the fact is that every bit of information Plaintiff enters onto her Facebook page demonstrates some level of cognitive functioning. This Court’s review of reported decisions in this area has not disclosed any instance where such unfettered access was allowed, unless the requesting party first showed that information on the  other party’s public page contradicted their claims of injury or damages. (Citation and case quote omitted). Defendants have not made that contention here. They hope to discover such information in their search. Defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff’s cognitive injuries from reading every bit of information on her Facebook page.

Accordingly, the Court denies that portion of Defendants’ motion to compel access to Plaintiff’s Facebook page, without prejudice to service of a more narrowly-tailored discovery demand.

One of the benefits of the use of social media expansion is that litigants are increasingly leaving a “digital footprint” which can be used against them for direct and/or collateral attack.  The key is to perform an initial work-up on the parties to determine if there is anything relevant online to utilize.  Doing the appropriate preliminary work-out will bear the greatest results and help crafting detailed and pointed discovery demands.

In seeking to access social media, a practioner needs to demonstrate that the information sought is relevant to the issues in question and that the access sought will likely lead to relevant disclosure.  The practioner can always seek the assistance of the Court to perform an in camera review of the items requested, but a well crafted demand is the best way to diffuse a “fishing expedition” charge by your adversary and increase your chances of the Court granting your discovery request.

[2] In People v. Harris, No. 2011-NY080152 (N.Y. Crim. Ct. 2012), the Court commented “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.  There is no proprietary interest in your tweets, which you have now gifted to the world.” 

[3] McCann v Harleysville Ins. Co. of New York, 78 AD3d 1524 (4th Dept 2010)

[4] Id at p.