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Social Media For The Defense

June 17, 2015
By: Frank Scahill

Judge Rebolini orders plaintiff to turn over Facebook postings in Melissa "G" and Garry "G" v. North Babylon Union Free School District, et. al.,(Index No: 36209/2006), March 23, 2015.

What a plaintiff posts on Social Media is fair game for the defendant to review (within limits). In this action, the plaintiff alleged she was sexually abused as a student at defendant's school by a teacher. The defendant sought access to her "private" postings on her Facebook account.

"In support of their application, defendants submitted printed pages from Melissa's Facebook account depicting postings that were accessible to the general public on May 20, 2014, including photographs of Melissa engaged in a variety of recreational activities and "activities with her boyfriend . . .; at work in a veterinary hospital; rock climbing; and out drinking with friends." Toward the top of each page is a notation, "To see what she shares with friends, send her a friend request." Defendants also submitted printed pages from an account that appears to be jointly held by Melissa and her boyfriend. Defendants assert that the public content on plaintiff's Facebook pages, as well as the content available only to "friends", are material and necessary to the defense of plaintiffs' claims. In this regard, defendants note that plaintiff Melissa testified at her deposition on December 9, 2011 that she has "serious trust issues with everyone" and that she suffers from anxiety attacks. It was also her testimony that she was "struggling" in her relationship with her boyfriend and that she had "no trust" concerning others."

Judge Rebolini ruled, "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" Insofar as plaintiffs claim as part of their damages that Melissa suffers a loss of enjoyment of life, among other things, the scope of relevant information subject to disclosure is broad. Compensation for loss of enjoyment of life addresses the loss of an individual's capacity to enjoy life by ". . . participating in recreational activities, and drinking in the many other pleasures that life has to offer . . .(McDougald v Garber, 73 NY2d 246, 258, 536 NE2d 372, 538 NYS2d 937 [1989, Titone, J., dissenting]). As defendants have shown that plaintiff's public Facebook pages contain photographs of Melissa engaged in a variety of recreational activities that are probative to her damage claims, it is reasonable to believe that other portions of her Facebook pages may contain further evidence relevant to the defense (see Richards v Hertz Corp., 100 AD3d 728, 953 NYS2d 654 [2d Dept 2012])."

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