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New York Appellate Court Rejects Demand for Facebook Records
By Irina Oberman – Edited by Ian C. Wildgoose Brown

McCann v. Harleysville Ins. Co. of N.Y., No. 10-00612, 1179 (N.Y.A.D. 4 Dept. Nov. 12, 2010)
Slip Opinion

The Appellate Division of the Supreme Court of the State of New York affirmed the Supreme Court’s denial of defendant’s motion to compel disclosure of photographs on Facebook and defendant’s motion for authorizedaccess to plaintiff’s Facebook account. The Supreme Court had ruled that defendant’s first request was “overly broad,” and that the amended request had failed to establish a factual predicate that the Facebook account was relevant. The Appellate Division agreed with the Supreme Court, noting that defendant was simply engaging in a “fishing expedition” to find relevant evidence. The Appellate Division modified the Supreme Court’s order, however, allowing defendant to file future discovery requests relating to plaintiff’s Facebook account.

The New York Personal Injury Law Blog provides an overview of the case and contrasts it with the Romano v. Steelcase ruling in September. Internet Cases blog warns that although the ruling is significant, it merely addresses overly-broad discovery requests and should not be construed as a decision to protect private personal information per se.

Plaintiff¸ Kara McCann, was injured in an automobile accident and filed a suit seeking the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier after claiming the entire insurance policy of the other driver involved in the collision. During discovery, defendant (her insurance company) sought access to plaintiff’s Facebook account and photographs posted on the site. Defendant claimed the account was relevant to the question of whether plaintiff had sustained a serious injury.

The New York Supreme Court held that although defendant had specified the type of evidence sought in its amended request, it did not establish a factual predicate “with respect to the relevancy of the evidence” and therefore the Facebook account was outside the scope of discovery. The Appellate Division reversed the lower court’s decision to grant plaintiff’s motion for a protective order, however, thereby leaving the door open for future discovery requests related to plaintiff’s Facebook account.

The case contrasts with a ruling in Romano v. Steelcase, 907 N.Y.S. 2d 650 (2010), where a trial court allowed defendants to access private information on plaintiff’s Facebook and MySpace accounts. In Romano, plaintiff claimed she had sustained permanent injuries and was confined to her house, while her public Facebook profile pages showed her smiling happily outside of her home. Because the public portions of the pages contradicted her claims and deposition testimony, the court concluded that the private portions of the sites could contain evidence that was “material and relevant to the defense” of the action. In McCann, however, the Supreme Court determined that there was no evidence that a similar request was appropriate.

While McCann appears to be one of the first appellate court holdings to limit social media discovery in a civil case, it is important to note that it does not necessarily indicate a willingness by the courts to grant private social media information complete immunity from discovery. Rather, the court’s insistence on a relevant “factual predicate” seems to suggest that whether social media falls within the scope of discovery depends on the facts of the case and the specificity of the discovery request, not necessarily on a general principle of protection of an individual’s private information.

Irina Oberman is a 1L at the Harvard Law School.

Posted On Nov - 28 - 2010 Comments Off

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