In D’Agostino v. YRC Inc. et al, 565-2011, 2012 WL 11980337 (NY Sup Ct Orange Cty May 17, 2012) – another decision in this rapidly-evolving area of the law – an Orange County trial court ordered the production of a personal injury plaintiff’s Facebook postings pertaining to her pre-incident condition.
There, the court granted defendants’ request for additional discovery, which was based on plaintiff’s sworn deposition testimony that she “suffered emotional and psychological problems and stressors predating this action and actually posted on [Facebook] comments concerning her mental and emotional state prior to this accident.”
Seizing on the “material and necessary” language of CPLR § 3101(a) and its broad interpretation by the courts (as well as the observation by a noted commentator that the CPLR essentially “invites” a “fishing expedition” into one’s adversary’s case), the court held that the defendants here satisfied the “two prong test” for discovery into social media, “the first being the specifics of what is sought and the second part being a factual predicate for seeking such evidence”:
Specifically, defendants request all social media postings and photographs contained on plaintiff’s social media accounts whether posted by her or others concerning any mental, emotional or physical condition suffered by plaintiff for which she claims an injury in this action. Such postings both pre- and post-date this accident. According to plaintiff’s own sworn deposition testimony, she suffered from various mental and emotional stressors which pre-dated this accident and about which she routinely posted concerning her feelings and emotions. Plaintiff claims depression and emotional and mental injuries in this lawsuit, but now wants to prevent the defendants from ascertaining the extent that those conditions existed prior to the accident and the extent they may have been exacerbated or not from this accident. By bringing this action, plaintiff placed her own mental, emotional and physical conditions at issue. The fact that she testified that she regularly posted her feelings on social media websites prior to and subsequent to this accident is wholly relevant information concerning her mental, physical and emotional states both before and after the accident. Plaintiff cannot now claim an expectation of privacy when she shared her feelings online, testified that she did so, and now makes claims for related injuries in this action.
The court therefore granted defendants’ motion for further discovery, which, if not complied with, would result in plaintiff’s claims being stricken.
(This case should be contrasted with a November 2011 decision (Sterling v. May) in which a NY County trial judge denied defendant’s request for access to plaintiff’s private Facebook postings as an improper “fishing expedition”. There, plaintiff merely testified that she had such an account, and nothing on her public Facebook page indicated that delving into her private pages would lead to the disclosure of admissible evidence.)