In Spearin v. Linmar, L.P., 129 AD3d 528 (App. Div. 1st Dept. June 16, 2015), a personal injury case, the court addressed an issue that is coming up with increasing frequency: namely, the extent to which a plaintiff’s social media postings must be turned over in discovery.
The court reversed a lower court decision that “ordered plaintiff to provide an authorization for access to his Facebook account records from the date of the subject accident to the present.”
The First Department held that this went too far:
Defendant established a factual predicate for discovery of relevant information from private portions of plaintiff’s Facebook account by submitting plaintiff’s public profile picture from his Facebook account, uploaded in July 2014, depicting plaintiff sitting in front of a piano, which tends to contradict plaintiff’s testimony that, as a result of getting hit on the head by a piece of falling wood in July 2012, he can longer play the piano. However, the direction to plaintiff to provide access to all of his post-accident Facebook postings is overbroad. We remand for an in camera review of plaintiff’s post-accident Facebook postings for identification of information relevant to his alleged injuries.
There is, of course, an arguable distinction between merely “sitting in front of” a piano, on the one hand, and “playing” the piano, on the other.