Key Takeaway
Appellate Division ruling on Facebook discovery in personal injury cases - court denies overly broad social media account access requests
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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.
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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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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 2,600 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.
99 published articles in Discovery
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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.
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