In Marfo v Castillo, No. 156442/2017, 2019 WL 1765896, 2019 N.Y. Slip Op. 31097(U) (N.Y. Sup Ct, New York County Apr. 22, 2019), a personal injury/car accident case, the court denied defendant’s motion to compel, inter alia, information regarding plaintiff’s social media accounts.[1]Full Disclosure: I appeared, in a per diem capacity, on oral argument on this motion.
The court cited the general legal standard, articulated by the Court of Appeals in Forman v. Henkin, 30 NY3d 656 (2018), which “explicitly specified a two-prong test for courts addressing disputes over the scope of a social media discovery”. In particular:
[C]ourts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.
Applying the law, Judge Silvera concluded:
Here, defendant has wholly failed to meet their initial burden. Defendant’s counsel’s affirmation in support lists the damages alleged by plaintiff, and argues that by virtue of plaintiff’s claimed injuries, which include, inter alia, anxiety, mental anguish, and loss of enjoyment of life, the requested discovery is discoverable. However, this alone does not meet the initial threshold burden as required by the Court of Appeals. A review of defendant’s demand demonstrates that defendant failed to demand discovery that was “reasonably calculated to yield information that is ‘material and necessary’ ”. Forman v Henkin, 30 NY3d at 661. Defendant’s blanket request for plaintiff’s social media information fails to even attempt to narrow or limit the requested discovery to eliminate material that would be irrelevant to the instant action. The Court of Appeals in Forman explicitly held that “[t]he right to disclosure, although broad, is not unlimited.” Id. at 661. The Forman Court “rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable…[, and went on to state that d]irecting disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on **4 any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information.”. Forman v Henkin 30 NY3d at 664-665. Here, defendant is attempting to do just that, and are seeking to compel, inter alia, plaintiff’s smart phones, laptops, tablets, and cameras, with no limitation on what data defendant would be entitled to. Undoubtedly there would likely be a significant amount of nonrelevant information stored on such devices. Rather, defendant’s demands are blanket demands which would yield every photograph or communication plaintiff has on any topic prior to and since the motor vehicle accident.
| ↩1 | Full Disclosure: I appeared, in a per diem capacity, on oral argument on this motion. |
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