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Your Case and Social Media: Discoverability of the Content of your Facebook Account

Social media sites such as Facebook and Twitter are seen as snapshots of our life typically meant to capture happy moments. The use of these sites are growing, and therefore it should come as no surprise that litigation over the discoverability of this content in courts has grown as well.

Discovery is the process by which both sides of a legal issue are entitled to information with regards to the claims they are asserting or claims being asserted against them. Further, CPLR 3101 (a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action." Although these two broad standards have governed the discoverability of evidence for a very long time, many would still be surprised to find out that the contents of their social media accounts are just as discoverable as police records.

In Romano v. Steelcase, (30 Misc 3d 426 [Sup Ct Suffolk Co, 2010]), a personal injury action, defendant filed a motion for access to plaintiff's current and historical social networking pages and accounts. In granting defendant's request for this information, the Court noted "plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action." This illustrates the importance of the discoverability of social media content in the context of personal injury cases, where a plaintiff's physical condition is always in controversy.

While the discoverability of social media content is broad, it is not unqualified. The following two personal injury cases, taking place right here in Richmond County, will illustrate the thin line between discoverable and not discoverable. In Caraballo v City of New York, (2011 NY Slip Op 30605[U] [Sup Ct, Richmond Co Mar. 4, 2011]), another personal injury case, third party plaintiff/defendant, "Campa", sought to compel plaintiff to provide Campa with authorizations to access plaintiff's "current and historical Facebook, Myspace and Twitter pages and accounts, including all deleted pages and related information." In denying this motion to compel discovery, the Court noted: "the discovery demand at issue is overly broad, and Campa has failed to establish a factual predicate with respect to the relevancy of the information the sites may contain." In stark contrast, Loporcaro v. City of New York and Perfetto Contracting, 35 Misc.3d 1209(A) (Sup Ct Richmond Co 2012), the Court permitted defendant's motion to compel production of plaintiff's full Facebook account. The difference between this case and the former revolves around plaintiff's public portion of their profile depicting plaintiff living an active lifestyle, clearly contradicting plaintiff's alleged knee injuries.

The lesson to learn is that, upon a showing that a party's social media content will contradict the claims asserted, your social media content is discoverable.

- Fara Fiore

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