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What's On your Facebook Page by Frank Scahill

January 21, 2016
By: Frank Scahill

What's On Your Facebook Page?

Social Media postings are the greatest gift to defendants since the advent of the collateral source rule. What a Plaintiff posts on Facebook, Instagram, YouTube and dozens of other social media sites is amazing and often fatal to their case. Just take a peek at this young man (click here) who claimed continuing pain and suffering from a tibia and fibula fracture.You truly cannot make this stuff up!

What can the defendant expect to obtain from the plaintiff's Facebook postings? Consider Forman v. Henkin, 2015 NY Slip Op 09350 (N.Y. App. Div.1st Department Dec. 17, 2015) from the First Department in December of 2015. Here, a horseback rider who had fallen from a horse filed a personal injury action against the owner of the horse. Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages. Judge Bluth granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages.

In Forman v. Henkin, the Appellate Division noted "Other Departments of the Appellate Division, consistent with well-established case law governing disclosure, have required some threshold showing before allowing access to a party's private social media information (see e.g. Richards v. Hertz Corp., 100 A.D.3d 728, 730-731, 953 N.Y.S.2d 654 [2d Dept 2012] [striking demand for Facebook information of one of the plaintiffs because there was no showing that the disclosure of that material would result in disclosure of relevant evidence or would be reasonably calculated to lead to discovery of information bearing on the claim]" "The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information (see Tapp, 102 A.D.3d at 620, 958 N.Y.S.2d 392 [the plaintiff's mere utilization of a Facebook account is not enough] ). Likewise, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account (see id. at 621, 958 N.Y.S.2d 392 [the defendants' argument that the plaintiff's Facebook postings might reveal daily activities that contradict claims of disability is "nothing more than a request for permission to conduct a fishing expedition."

In Forman, the Court refused to adopt new rules for social media postings holding, "Contrary to the dissent's view, this Court's prior decisions do not stand for the proposition that different discovery rules exist for social media information. The discovery standard we have applied in the social media context is the same as in all other situations - a party must be able to demonstrate that the information sought is likely to result in the disclosure of relevant information bearing on the claims ....This threshold factual predicate, or "reasoned basis" in the words of the dissent, stands as a check against parties conducting "fishing expeditions" based on mere speculation."

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