New York’s Appellate Division Finds Facebook Accounts Off-Limits When Discovery Demands are Non-Specific

In McCann v. Harleysville Insurance Co. of New York, 910 N.Y.S.2d 614, 2010 N.Y. App. Div. LEXIS 8396 (N.Y. App. Div. Nov. 12, 2010), New York’s Appellate Division, Fourth Department affirmed the trial court’s refusal to compel Plaintiff to produce information regarding or provide access to her Facebook account. Plaintiff was injured in an auto accident with one of Harleysville’s insured. She filed a personal injury suit against the insured, which resulted in a settlement. Plaintiff thereafter commenced a new action directly against Harleysville for certain uninsured/underinsured auto insurance benefits.

During discovery, Harleysville sought disclosure of photographs from Plaintiff and an authorization for access to her Facebook account. Upon Plaintiff’s refusal, Harleysville moved to compel disclosure of Plaintiff’s Facebook account information. Harleysville argued that the information sought was relevant to whether McCann suffered a serious injury in the accident without specifying why. The trial court disagreed, finding that Harleysville’s request was “overly broad,” but noted that the denial was without prejudice “to service of new, proper discovery demands.” Harleysville then made a second request for access to Plaintiff’s Facebook account, which the Fourth Department noted specified the type of evidence Harleysville sought. Plaintiff again refused to disclose her Facebook account information and Harleysville again moved to compel. The trial court again denied the motion, finding that Harleysville failed to establish the relevancy of the evidence sought, and further granted Plaintiff’s cross-motion for a protective order.

On appeal by Harleysville, the Fourth Department, in a succinct opinion, held that the trial court properly denied Harleysville’s two motions to compel. The Court likened Harleysville’s motions to a request for permission to conduct a “fishing expedition” into Plaintiff’s Facebook account in hopes of finding relevant evidence. It disagreed, however, with the trial court’s entry of a protective order, determining that Harleysville should be allowed to seek disclosure of Plaintiff’s Facebook account in the future.

The McCann decision is consistent with Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct. Sept. 21, 2010) and McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. of Com. Pl. Sept. 9, 2010), which were previously discussed here and here. Implicit in all three decisions is that non-public communications and information found on social networking websites will not be protected from disclosure when it is properly demonstrated that the sought-after information is relevant to the litigation. As was previously discussed here, publicly accessible information on such sites has already been found to be discoverable. Unlike the boilerplate and catch-all discovery requests in personal injury actions, requests for access to a litigant’s Facebook or other social networking account must be specifically tailored and, if possible, tied to actual facts or information found on the public portions of a litigant’s account.

Robert D. Brown, Jr. is an Associate on the Gibbons E-Discovery Task Force.
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