It is facebook – split decision

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.

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