Clickbait: A Refresh on Social Media Discovery

By Jesse L. Siegel, Esq.

Imagine unearthing a TikTok of the plaintiff in your personal injury lawsuit dancing at a costume party in a Manhattan nightclub within six months following her accident.  Or uncovering a private Facebook message by the alleged permanently injured plaintiff reveling in the condition of the slopes during a recent ski trip to the Catskills.

Social media is a dominant force in our lives today, and that desire for likes and followers can have a drastically negative impact on a plaintiff’s claim (despite their counsel’s dire warning to stay off social media).

A properly tailored social media discovery demand can yield tremendous results for the defense of your claim.  In New York, discovery rules are broad and provide for full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of burden of proof.  CPLR 3101(a).  In general, a public social media account is discoverable. But what about private messages or posts? 

The Court of Appeals laid the groundwork for broader acceptance of the disclosure of private social media messages in Forman v. Henkin, 30 N.Y.3d 656 (2018).  In Forman, plaintiff alleged injuries after falling from a horse.  At her deposition, plaintiff stated that she previously had a Facebook account on which she posted a bevy of photographs showing her pre-accident active lifestyle, but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. Defendant sought an unlimited authorization to obtain plaintiff's entire "private" Facebook account.  Plaintiff opposed the motion arguing that defendant failed to establish a basis for access to the "private" portion of her Facebook account because, among other things, the "public" portion contained only a single photograph that did not contradict plaintiff's claims or deposition testimony.

The Court ruled that given plaintiff's acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations.

There are two key takeaways from this decision.  First, after much back and forth up to the Court of Appeals, the Court did not simply allow for unrestricted access to the entirety of a private social media account, but specifically limited the inquiry to the period of six months following the accident in which plaintiff’s social media account was active.  Second, the Court required only disclosure of photographs which could depict her lifestyle following the accident, which plaintiff had placed in issue.  The significance of the decision is that a request for these photographs was reasonably calculated to yield evidence material and necessary to the litigation, specifically, plaintiff's assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become a recluse.

The Court in Forman also provided a road map with three guidelines for future decisions in determining the scope of social media disclosure: (1) Take into account the character of the incident causing the lawsuit and the damages claimed to evaluate whether relevant material is likely to be found on social media; (2) Weigh the possible utility of the information requested against specific concerns, including privacy; (3) Tailor the request by identifying materials to be disclosed while avoiding disclosure of irrelevant information.

A subsequent decision from the Appellate Division in Abedin v. Palominos Osorio, 188 A.D.3d 764, 136 N.Y.S.3d 92 (2d. Dept., 2020) illustrates the Court’s continued broad discretion and liberal viewpoint on social media discovery.  In Abedin, a zone of danger claim was presented in which the infant plaintiff witnessed her brother’s tragic death when he was struck by a tractor-trailer as the pair was walking across a street.  There were allegations of psychological, mental and emotional trauma, as well as evidence that the infant plaintiff became socially withdrawn and isolated.  Defendant eventually demanded authorizations to obtain plaintiff’s records from Facebook, Snapchat and Instagram, to which the plaintiffs objected.  The Court ruled that the defendant demonstrated that records from the infant plaintiff's Facebook, Snapchat, and Instagram accounts were reasonably likely to yield relevant evidence regarding the alleged emotional and mental trauma that the infant plaintiff suffered from as a result of the subject accident, which allegedly was, in part, evidenced by her social isolation and withdrawal.  The Court cited to Forman in its decision.

To successfully use social media to defend your claim, it is vital not to rely on a simply blanket social media demand at the beginning stages of litigation served along with your Answer.  Instead, attempt to tailor your demands in both time and topic, which should lead to a more favorable decision from the Court if the issue needs to be litigated.  Prior to a deposition, do a public social media search of the plaintiff to see what he or she has posted publicly.  Questions at deposition regarding ownership of social media accounts, activity levels, usage and habits will also play a crucial role in obtaining social media discovery and in turn finding potentially damaging content that the plaintiff may have innocuously decided to share.  Skilled technical experts can also conduct social media searches yielding potentially relevant information and help to narrow the scope of your demands.  Experts in the use of geosocial data can track movements such as how often a person checks in at the gym, travels outside of their residential county, or even runs at their local high school track.

With a variety of potential tools at your disposal, put social media to use in your practice in addition to your daily dose of baby photos and funny cat videos. 

Newsletter Sign Up