Defendant Entitled to Social Media Discovery in Auto Accident Case

In Vasquez-Santos v. Mathew, 2019 NY Slip Op 00541 (App. Div. 1st Dept. Jan. 24, 2019), a car accident personal injury case, the court ruled on an increasingly-prevalent issue in litigation: the extent to which a plaintiff’s social media posts are discoverable by the other side.

Plaintiff, a formerly semi-professional basketball player, sued after sustaining injuries in a car accident. The defendant sought “access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities.” The trial court denied that request, and the First Department reversed.

From the decision:

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities