In Del Gallo v. City of New York (decided June 17, 2014), a tragic personal injury case arising from death and injuries sustained from a falling Central Park tree branch (complaint here), the court ruled on plaintiffs’ motion for a protective order (under CPLR 3103) regarding certain discovery requests made by defendants.
While the court discussed various items sought by defendants – including ultrasound fertility records, driving records, and ob/gyn records – here I’ll focus on defendants’ request for “the content of [plaintiff’s] entire LinkedIn account.” The court permitted access to some, but not all, of this information.
The court summarized the (continuously evolving) law in this area:
While courts continue to grapple with, and formulate guidelines for, discovery of electronically stored information, including social media records, courts recognize that, generally, [d]iscovery of [social networking postings] requires the application of basic discovery principles in a novel context. As in other contexts, a party demanding access to social networking accounts must show that the method of discovery will lead to the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information that bears on the claims. [T]he scope of discovery, while broad, does not give a party the right to uncontrolled and unfettered disclosure, and the fact that the information [Defendant] seeks is in an electronic file as opposed to a file cabinet does not give [it] the right to rummage through the entire file. [D]igital fishing expeditions are no less objectionable than their analog antecedents.
Courts have used a two-prong analysis for determining whether social media accounts are discoverable. First, the court determines whether the content in the accounts is material and necessary, and then it balances whether the production of this content would result in a violation of the account holder’s privacy rights. To warrant such discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s [social media] account-that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims. Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming fishing expedition.
The court permitted defendants access to “information pertaining to plaintiff’s communications with recruiters and others, related to job offers and inquiries, searches, and responses, if any, available on her LinkedIn account.” In support, it pointed to the fact that plaintiff did not “dispute that information related to her communications with recruiters may be relevant to her lost earnings claim” and that plaintiff agreed to provide this information when it became available.
The court did not, however, allow defendants unfettered access to plaintiff’s LinkedIn account for all purposes, finding that defendants failed to show “that they are entitled to discovery of plaintiff’s communications with former colleagues inquiring about her condition, or to all other material on plaintiff’s LinkedIn account.”
WCS, in arguing that plaintiff’s self assessments in response to inquiries from former co-workers are relevant to her damages claim, neither asserts that the disclosure might contradict or conflict with her claims nor otherwise provides a proper basis for the disclosure. WCS’s further argument, that plaintiff’s LinkedIn communications are relevant to her claims that her injuries have prevented her from enjoying the normal fruits of society and have contributed to loss of enjoyment of life, is improperly raised for the first time in reply. Even considering the argument, however, defendants offer no more than the mere hope of finding relevant evidence, which is insufficient to warrant such disclosure. To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification for requiring the production of every thought she may have reduced to writing.
Finally, the court rejected the City’s attempt to access plaintiff’s “Luminosity” account – which it noted was “essentially an online brain game site” – as being without support.