Key Takeaway
Appellate Division ruling on Facebook discovery in personal injury cases - court denies overly broad social media account access requests
This article is part of our ongoing discovery coverage, with 97 published articles analyzing discovery issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
The Appellate Division, Fourth Department discussed some interesting discovery issues involving Facebook.
Mccann v Harleysville Ins. Co. of N.Y., 2010 NY Slip Op 08181 (4th Dept. 2010)
“defendant appeals from an order denying its motion to compel disclosure of photographs and seeking “an authorization for plaintiff’s Facebook account.” According to defendant, the information sought was relevant with respect to the issue whether plaintiff sustained a serious injury in the accident. We conclude in appeal No. 1 that Supreme Court properly denied defendant’s motion “as overly broad,” without prejudice “to service of new, proper discovery demands” (see generally Slate v State of New York, 267 AD2d 839, 841). In appeal No. 2, defendant appeals from an order denying its subsequent motion seeking 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 defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence (Auerbach v Klein, 30 AD3d 451, 452). Nevertheless, although we conclude that the court properly denied defendant’s motion in appeal No. 2, we agree with defendant that the court erred in granting plaintiff’s cross motion for a protective order. Under the circumstances presented here, the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff’s Facebook account at a future date. We therefore modify the order in appeal No. 2 accordingly.”
My motivation for this post came from here. To answer the hyperlinked post – yes, these social networking sites might be the end of civilization. Ever hear the story about the guy who claimed he could not leave his house, could not drive a car or work because of the motor vehicle accident, yet was seen kyaking out on eastern long island hiking in the Berkshires, as well as driving to New York City. The photos and stories were found on the guy’s Facebook page. You probably have not heard this story, but I have the EUO transcript to prove it. The guy’s attorney, when he first heard the story at the EUO, just shook his head. The attorney did not see it coming.
But my real life case is one of many. And yes, Facebook has allowed stories like this to torpedo many personal injury cases.
This Appellate Division case is just the first of what we all know will be many discovery battles involving Facebook accounts that will find their way through the Appellate courts. It is interesting that the first Appellate Facebook case came from the Fourth Department and not the busier and more litigious Second Department.
Related Articles
- Understanding Discovery Rules and Summary Judgment Timing in NY Personal Injury Cases
- Discovery Violations and Court Sanctions: When New York Courts Strike Back
- Appellate Term holds CPLR 3212(f) relief is inappropriate under three separate circumstances
- Move quickly or do not move at all
- New York No-Fault Insurance Law
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Discovery Practice in New York Courts
Discovery is the pre-trial process through which parties exchange information relevant to the dispute. In New York, discovery practice is governed by CPLR Article 31 and involves depositions, interrogatories, document demands, and physical examinations. Disputes over the scope of discovery, compliance with demands, and sanctions for noncompliance are frequent in both no-fault and personal injury cases. These articles analyze discovery rules, court decisions on discovery disputes, and strategies for effective discovery practice.
97 published articles in Discovery
Keep Reading
More Discovery Analysis
Another Discovery
Appellate Term ruling on discovery objections shows courts won't disturb trial court discretion when defendants fail to timely object within CPLR's 20-day period.
May 22, 2021Deposition rulings
New York appellate court clarifies that deposition rulings cannot be appealed as of right, even when made through formal motion practice rather than during examination.
Sep 25, 2020Discovery
New York no-fault insurance discovery rules and deposition requirements in PIP litigation, including procedural requirements and cost implications for legal strategy.
Mar 20, 2019The errant notice to admit
Court rules improper notice to admit cannot establish prima facie case for no-fault insurance EUO nonappearance, highlighting discovery limits in litigation.
Oct 6, 2015Court takes judicial notice of Supreme Court declaratory judgment action
Court takes judicial notice of Supreme Court declaratory judgment action with res judicata effect in no-fault insurance dispute (150 chars)
Sep 9, 2013Amendment of bill of particulars on the eve of trial is allowed
New York Appellate Term rules that amending a bill of particulars on the eve of trial requires judicial discretion exercised in a "discreet, circumspect, prudent and cautious...
Jul 19, 2010Common Questions
Frequently Asked Questions
What is discovery in New York civil litigation?
Discovery is the pre-trial phase where parties exchange relevant information and evidence. Under CPLR Article 31, discovery methods include depositions (oral questioning under oath), interrogatories (written questions), document demands, requests for admission, and physical or mental examinations. Discovery in New York is governed by the principle of full disclosure of all relevant, non-privileged information — but courts can issue protective orders to limit discovery that is overly broad or burdensome.
What happens if a party fails to comply with discovery requests?
Under CPLR 3126, a court can impose penalties for failure to comply with discovery, including preclusion of evidence, striking of pleadings, or even dismissal of the action or entry of a default judgment. Before seeking sanctions, the requesting party typically must demonstrate a good-faith effort to resolve the dispute and may need to file a motion to compel disclosure under CPLR 3124.
What are interrogatories and how are they used in New York litigation?
Interrogatories are written questions served on the opposing party that must be answered under oath within a specified timeframe. Under CPLR 3130, interrogatories in New York are limited — a party may serve a maximum of 25 interrogatories, including subparts, without court permission. Interrogatories are useful for obtaining basic factual information such as witness names, insurance details, and factual contentions. Objections must be specific and timely or they may be waived.
What is a bill of particulars in New York personal injury cases?
A bill of particulars under CPLR 3043 and 3044 provides the defendant with the specific details of the plaintiff's claims — including the injuries sustained, the theory of liability, and the damages sought. In personal injury cases, it must specify each injury, the body parts affected, and the nature of the damages claimed. An amended or supplemental bill may be served to include new injuries or updated information discovered during the course of litigation.
Was this article helpful?
About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a discovery matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.