November 17, 2010
Request for Discovery of Facebook Profile and Photos Rejected as a Fishing Expedition -- McCann v. Harleysville Insurance
[Post by Venkat]
McCann v. Harleysville Insurance Co. (2010 NY Slip. Op. 08181) (Nov. 12, 2010)
We've blogged about several decisions involving disputes around the discovery of social network profiles. An appeals court in New York recently rejected a party's request for the contents of plaintiff's Facebook profile because the party seeking the discovery "failed to establish a factual predicate with respect to the relevancy of the evidence." The plaintiff was involved in an auto accident, and settled with the other driver, and then went after the driver's insurance company. The insurance company sought disclosure of photographs from plaintiff's Facebook profile, and sought "an authorization for plaintiff's Facebook account."
The court found that the defendant failed to put forth a sufficient factual predicate that anything relevant was contained in the profile, and thus the request smacked of a "fishing expedition." However, the court also found that the plaintiff's request for a protective order should not have been granted - i.e., defendant could come back, establish the "factual predicate," and obtain the necessary information.
As with the other cases involving the discovery of social networking profile information, this case illustrates the logistical challenges posed in these situations. The party seeking discovery should not be able to rummage around in the other side's Facebook account. On the other hand, if there is relevant evidence, the party seeking discovery should not be deprived of access to it just because it's contained in a social networking profile. (There's also the issue of whether private messages are protected from disclosure by virtue of federal statutes.)
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase"
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
Eric Turkewitz: "Demand for Facebook Records Rejected by NY Appellate Court"
Posted by Venkat at November 17, 2010 02:10 PM | Evidence/Discovery