Appellate court compels production of plaintiff's private Facebook materials after a finding of discoverable photographs on plaintiff's public access profile on Facebook.

In the ongoing saga to determine the scope of discovery as it relates to social media sites, the New York Supreme Court Appellate Division provided some further guidance on the issue. In this civil action, plaintiffs McCarthy and Richards submitted personal injury claims resulting from injuries sustained in a motor vehicle accident. Plaintiff McCarthy testified at her deposition that her injuries impacted her ability to participate in sports activities, especially during cold weather. Defense counsel discovered on the plaintiff's Facebook account a photograph that was posted and open to the public depicting the plaintiff skiing subsequent to the motor vehicle accident and requested authorization for full access to the plaintiff's Facebook account.

The appellate court found that the defendants demonstrated that the photograph of plaintiff McCarthy was probative as to her damages claims, and it was reasonable to believe that other portions of her Facebook profile might contain additional relevant evidence. As such, the plaintiff was required to disclose all photographs posted on Facebook depicting the plaintiff participating in sporting activities. However, the court would not permit blanket disclosure of all of the plaintiff's Facebook messages, e-mails, postings, videos, etc. Rather, the court remanded the issue for in camera review of the plaintiff's private contents to determine whether any such content is similarly relevant. The court explained, "With respect to McCarthy's Facebook profile, the Dunn defendants made a showing 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 her claim."

The court would not allow discovery of plaintiff Richards' private Facebook content, absent a showing of some evidence to suggest that Richards had also posted materials relevant to her claim. This opinion demonstrates the ongoing balance the courts are trying to strike in protecting claimants' privacy rights with the discovery of relevant information on social media sites and the critical component social media continues to play in mounting a defense to personal injury claims.

Case Law Alert, 1st Quarter 2013