February 2013 Facebook Update

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The Appellate Division, First Department holds that the mere possession and use of a Facebook account is not enough to compel a plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account.

In Tapp v New York State Urban Dev. Corp., 2013 NY Slip Op 00547 (1st Dept. 2013), the defendant requested during discovery for access to the plaintiff’s Facebook account.  Plaintiff did not comply with this request and the defendant filed a motion to compel an authorization of the plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived.  The Supreme Court denied the defendant’s motion and the defendant appealed.

The Appellate Division unanimously held that the “plaintiff’s mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.” The court went on to explain that to establish the need for discovery, the defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account.  Essentially, the court found that there must be information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”  As the defendants failed to identify any of this relevant information, the court would not permit them to go on a fishing expedition.  Indeed, the court specifically held that any argument that the Facebook postings “may” or “might” contradict or conflict with the plaintiff’s injury or disability claims is insufficient as a matter of law to permit the “fishing expedition” the defendant’s desire.

This area of the law is beginning to crystallize.  If a party can establish a factual reason for the discovery, they have a chance of gaining access to social media posting and records.  If a party is simply trying to find something it hopes may be in a social media posting, the court will not permit them to go “hunting.”  To read the full opinion please click here.