Appellate Court Strikes Facebook Disclosure Order for “All” Records; Lower Court Forced to Do Review

A New York appellate court yesterday struck a lower court determination that all Facebook records had to be revealed in discovery in an auto accident lawsuit, and directed the lower court to restrict plaintiff’s Facebook information only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

That order, in  Patterson v. Turner Construction, essentially forces the lower court to do an in camera review of all the Facebook records, and will similarly force other courts that consider Facebook disclosure demands to appreciate that they may be swamped with documents to review each time such disclosure is considered.

The discovery of social media records is a pretty hot topic, and will continue to be so for some time, as courts struggle to see how the myriad ways that people express themselves, and the spectacular quantities of information that are being created in the digital age, fit into the arena of traditional discovery permitted in personal injury cases. I’ve covered that subject a couple of times before:

The Unseen Danger of Social Media (Twitter, Facebook, and More) (10/20/09)

Demand for Facebook Records Rejected by NY Appellate Court (11/17/10)

So yesterday, the Appellate Division (First Department) reversed a lower court order that had:

granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived

That was a pretty broad lower court order, and the appellate court was not going to endorse it. Facebook records, the Court ruled, “are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, “but at the same time, that doesn’t mean the defendants have carte blanche to go on a fishing expedition through a person’s entire personal life just because they brought a lawsuit. Essentially, the Court must itself go through the discovery to determine if the information  ”is relevant, in that it contradicts or conflicts with plaintiff’s alleged [claims].”

What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter,  emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

And because this will be such a big burden for lower courts, judges are likely to demand that the requesting litigants show a “factual predicate” for making the demand in the first place, that the Fourth Department discussed last year in McCann. V. Harleysville Ins. Co. That court wrote:

Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence

So that is the current state of New York law on trying to obtain Facebook records. A defendant must show a “factual predicate” to make the demand, and if the court grants the request, then the Court will have to go through the records itself to find anything that might be relevant.

The basic rule of the digital age should be this: Don’t type anything to anyone or type anything into any forum, that you will be ashamed to see on the front page of the paper or exposed one day in a courtroom. The story of Dr. Flea should have made that clear.

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6 Responses Leave a comment

  • Mark Draughn 2011.10.29 at 11:24 | Quote

    I’m curious, does the judge actually have to do the entire review personally? Or would he bring in a neutral third party to do the grunt work — perhaps a lawyer or forensic expert required to keep it confidential and work from a selection specification hammered out by the parties?

  • Eric Turkewitz 2011.10.29 at 11:45 | Quote

    I’m curious, does the judge actually have to do the entire review personally? Or would he bring in a neutral third party to do the grunt work — perhaps a lawyer or forensic expert required to keep it confidential and work from a selection specification hammered out by the parties?

    I thought about that. But the Judicial Hearing Officers were axed in the last round of budget cuts. They now close the courthouses at 4:30. There isn’t any money to hire people to do that work. See:

    http://www.newyorkpersonalinjuryattorneyblog.com/2011/03/new-york-sacking-300-judges.html

  • Beckley Mason 2011.11.8 at 18:22 | Quote

    I agree with Mark, there seem to be some efficiency issues. Is there any equivalent in the analog world to the amount of information that a person makes semi-public via social media?

  • Eric Turkewitz 2011.11.8 at 19:20 | Quote

    Is there any equivalent in the analog world to the amount of information that a person makes semi-public via social media?

    I can’t think of any, can you?

  • Beckley Mason 2011.11.8 at 20:31 | Quote

    @Eric: Not really. I wonder if the courts need to have some sort of interaction with Facebook (through Congress, or one of the many gov’t agencies that is in constant contact with the source of more personal information than any organization or government ever) to make users aware of the legal implications and parameters of what they post.

  • While these conclusions seem in theory very logical, I suspect that the sheer amount of work they’ll generate over the course of rote personal injury cases may cloud the pool of evidence somewhat. Sounds like a job for a first-year associate to me! With the sheer amount of information being shared every day online, I’d be surprised if some future political careers and/or injury suits weren’t being sabotaged right this minute.

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