A New York state appellate court has confirmed that the mere initiation of a lawsuit does not provide a basis to permit a defendant unfettered access to a plaintiff’s social media sites. In Pecile v. Titan Capital Group, LLC, 2014 N.Y. App. Div. LEXIS 420 (1st Dep’t Jan. 23, 2014), the court denied the defendants’ request for access to plaintiffs’ social media sites because, apart from generalized assertions that the information could contradict plaintiffs’ claims of emotional distress, the defendants did not offer a proper basis for the disclosure. This holding is consistent with prior court rulings that a plaintiff’s mere possession of a social media account is an insufficient basis to compel the plaintiff to provide access to the account.
However, this does not mean that a plaintiff’s social networking sites are open to discovery. Courts have recognized that a plaintiff’s electronically stored information (ESI) and social networking sites may contain discoverable information relating to a plaintiff’s claims, potential damages and witnesses. Courts will order production of information on social networking sites, even information that is not publicly accessible, so long as there is a factual basis for requesting such information. For example, a court may require production of relevant information on social networking sites if the defendant, through written discovery or depositions, has identified information that contradicts the plaintiff’s alleged claims or damages.
Even if no relevant information appears on the public portion of a plaintiff’s social networking sites, the defendant should still request confirmation that a plaintiff’s counsel has produced all relevant information from the plaintiff’s personal ESI and social networking sites relating to the claims and damages in response to written discovery requests. The plaintiff and defendant are entitled to all relevant information regarding a plaintiff’s claims and request for damages as long as the information is reasonably accessible and the expense of the discovery does not outweigh its benefit. Information on a plaintiff’s private social networking site is not exempt from this requirement. Moreover, a defendant should request that a plaintiff’s counsel review the information on a plaintiff’s social networking sites and determine whether any information is relevant, rather than relying on the representation of the plaintiff. In Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 2013 U.S. Dist. LEXIS 83341 (E.D.N.Y. May 6, 2013), the court discussed these discovery principles and held that the plaintiff’s counsel must review the plaintiff’s social networking accounts and produce all information and postings regarding the allegations and events in the plaintiff’s complaint, any references to the emotional distress she claims she suffered and any treatment received, and any postings regarding alternative potential stressors in her life.
Narrowly tailored discovery requests specifically relating to a plaintiff’s ESI and social networking sites and confirmation from plaintiff’s counsel that all relevant information has been produced in response to the requests are appropriate and necessary in the defense of a case.