Car Accident Plaintiff Must Respond to Requests for Admission Regarding Instagram “Selfies,” Court Rules

Here is yet another reason why accident victims should refrain from using social media after they are in an accident.

In Smith v. Brown, 2018 NY Slip Op 28299 (Sup. Ct. Bx. Cty. Sept. 27, 2018), a personal injury case involving a motor vehicle accident, the court held that plaintiff was required to respond to requests for admission as to a social media (Instagram) account owned by plaintiff.

The court provides the following context:

Defendant Pasquale served on plaintiff a notice to admit on or about August 6, 2018. The notice contained requests for admissions on the following matters: (1) whether plaintiff owns and maintains an Instagram account with a specific “handle”; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs — obtained from the Instagram account — and whether those photographs were taken after the accident;[] and (4) whether plaintiff was depicted in a specified video — obtained from the Instagram account — and whether that video was taken after the accident. With regard to the photographs, copies of each of the 33 photographs for which admissions were sought were served with the notice; each photograph was separately identified using letters and numbers[]. Some of the photographs depict a young woman engaged in different activities, such as riding in a car, climbing a rock, and walking on a boardwalk. The majority of the photographs though appear to be “selfies[.]”^[1]The court proceeded to cite the Oxford Dictionary definition for the term “selfie.”

Plaintiff sought a protective order, under CPLR 3103(a), vacating or striking defendant’s notice to admit or, alternatively, an extension of time to respond to it.

The court denied the portion of plaintiff’s motion seeking to vacate or strike the notice to admit, explaining:

Here, defendant Pasquale sought admissions from plaintiff as to uncontroversial, “clear-cut matters of fact” that are within plaintiff’s knowledge[]. Plaintiff either owns and maintains an Instagram account with a specified handle or she does not, and either that handle was changed from a public to private account setting after a specific date or it was not. Moreover, with respect to the requested admissions relating to the photographs — that were obtained from plaintiff’s Instagram account — plaintiff can state whether she is the one depicted in the photographs — most of which appear to be “selfies” — and whether the photographs were taken after the accident. The notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, that the matters on which defendant Pasquale seeks admissions could be explored at a deposition does not take them out of the ambit of the notice to admit. At bottom, the notice sought admissions of the truth of clear-cut matters of fact that defendant Pasquale reasonably believed there could be no substantial dispute at trial and were within the knowledge of plaintiff (see CPLR 3123[a]).