Court Permits Limited Social Media Discovery in Personal Injury Case

In Caserta v Triborough Bridge and Tunnel Authority, No. 157983/2015, 2019 WL 1003772 (N.Y. Sup Ct, New York County Feb. 26, 2019), a personal injury case, the court stated and applied the general rule regarding discovery of a plaintiff’s social media postings.

Here is the court’s summary of the general rule:

Social media information is subject to disclosure to the extent it contradicts or conflicts with a plaintiff’s alleged disabilities, restrictions, losses, or other claims. (Vasquez-Santos v Mathew, 168 AD3d 587 [1st Dept 2019], quoting Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Although disclosure is permissible, it is limited to items posted after the events giving rise to the loss, and to activities that contradict a plaintiff’s claims.

In this case, defendant sought, inter alia,

full and accurate copies of any social media history/records and/or documents, from XX/XX/2015 through the present for Dennis Caserta, date of birth […], whether current, continuing, archived and/or of whatever other nature, including, but not limited to, all member information; photographs; videos; pictures; posts; comments; photographs; and posts to others’ Facebook pages and accounts.

Plaintiff alleged, in his verified bill of particulars, that he suffered from a “buckling right leg; swelling; tenderness; muscle strain; morning stiffness; and loss of sleep” and acknowledged, at his deposition, of “having posted on Facebook and YouTube, including videos and photographs of him attending and playing piano and other instruments at rock and roll and country music concerts. Plaintiff also admits to posting videos which may depict him playing piano or other musical instruments.”

Based on this, the court “split the social media baby”, as it were. Judge Jaffe explained:

As the postings may show that his engagement in these activities contradicts his alleged damages, they are discoverable. While some postings may reflect events that occurred before plaintiff’s accident, defendant is entitled to discovery to rebut any such contentions. (Id. [defendant entitled to discover social media information that may depict events prior to date of accident]).

Plaintiff’s entire social media history, however, is not discoverable, and thus, the subpoenas must be limited to those items which show or discuss plaintiff attending and/or performing in concerts or playing musical instruments since March 6, 2015, the alleged date of the accident.

Therefore, the court granted defendant’s motion to compel “to the extent of directing defendant to limit the requested subpoenas to those items which show or discuss plaintiff attending and/or performing in concerts or playing musical instruments since March 6, 2015.”