NY Appellate Court Bars Discovery of Facebook Materials

Yesterday, New York’s Appellate Division, First Department, reversed a lower court judge in refusing to allow broad discovery regarding Facebook and other social media sites. Discovery of data from social media sites is as hot a subject as can be found among litigants, and this is now the second of New York’s four appellate divisions to weigh in on the subject.  In November 2010, the Fourth Department similarly shot down a Facebook demand in McCann v. Harleysville Insurance.

Yesterday’s decision in Abrams v. Pecile resulted from semi-nude photos of the plaintiff that the defendant possessed, and an allegation of attempted extortion. According to the court, the:

plaintiff alleges that defendant, a former employee of plaintiff’s husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff’s husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff’s husband and his brother.

New York, it seems, is firmly putting the brakes on out-of-control discovery requests. There was no new disclosure standard used, with the court using the time-tested:

“the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” … Nor has defendant shown that broad discovery concerning plaintiff’s finances, education, immigration status, and educational background is “material and necessary” (CPLR 3101[a]).


2 Responses Leave a comment

  • bob m 2011.4.21 at 14:09 | Quote

    The use of social media like Face Book is a hot topic in a lot of areas right now, not just personal injury. I just read an article about debt collection companies using FB info to contact relatives and friends of the debtor and whether this would be a violation of the Fair Debt Collection Practices Act. This is a very interesting and rapidly emerging issue. I’d enjoy reading more about this.

    Thanks – Bob M

  • gary rosenberg 2011.4.22 at 14:53 | Quote

    A quick read of the case shows that you’re right, this is not really anything new. It seems like the App Div was trying to prevent pltf from being victimized a second time (assuming her allegations are true) — 1st, deft swipes her semi-nude honeymoon photos; 2nd, deft seeks to rummage through her personal Facebook postings. This would be roughly equivalent to letting deft go through her personal photo albums.

    I think if something is openly visible on Facebook the content is fair game for use in a lawsuit. Beyond that, and particularly in the non-public pages of one’s Facebook creation, there should be an expectation of Facebook privacy honored and upheld by the courts.

    Anyway, that’s my opinion.

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