Court Denies Request for Discovery of Facebook and Twitter Account Information, Finding that the Request is a “Digital Fishing Expedition”

[Post by Venkat Balasubramani]

Caraballo v. City of NY, Index No. 75535/08 (N.Y. Sup. Ct.; Mar. 4, 2011)

Plaintiff suffered personal injuries “while performing work at 417 O’Gorman Avenue, also known as 45 Keegans Lane, on Staten Island.” Predictably, defendant sought discovery of

plaintiff’s current and historical Facebook, Myspace and Twitter pages and accounts, including all deleted pages and related information.[emphasis added]

Plaintiff objected on the grounds that the discovery was overbroad, intrusive and the information sought was irrelevant. Defendant argued that the records from the social networking sites were:

just as relevant as plaintiff’s medical records to the extent that there are photographs, status reports, [and] videos that depict plaintiff engaging in activities that contradict his injury claims in this case.

Defendant also pointed to a prior case where a defendant’s request to access plaintiff’s MySpace account was granted. However, in that case, the plaintiff had testified as to the types of information she had posted to her MySpace account. Here, the defendant put forth no such evidence. It tried to obtain access to the Twitter and Facebook accounts hoping to find something there. The court denies the request:

the discovery demand at issue is overly broad, and [defendant] has failed to establish a factual predicate with respect to the relevancy of the information the sites may contain. In the opinion of this Court, digital “fishing expeditions” are no less objectionable than their analog antecedents.

A previous case from a trial court in New York granted a similar request to discover plaintiff’s Facebook and MySpace Posts (Romano v. Steelcase, discussed in this post: “Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase“.) That case dealt primarily with deleted posts, and didn’t address the question of plaintiff’s privacy interests in private posts or messages.

This case (like the other cases involving discovery of social network information) illustrates some of the practical difficulties that courts and litigants will face when trying to get access to a party or witness’s social network information. The party seeking the information has to demonstrate that it seeks information that is relevant to the dispute (and that the account will contain such information). Defendant did not make that showing here, but if it had, was the court willing to give defendant unfettered access to the account? That doesn’t seem like a tenable result. In any event, it’s good to see that courts are imposing some minimal threshold before allowing litigants to access the contents of a party’s social networking account.

Previous posts:

Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase

Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act — Crispin v. Audigier

Court Refuses to Set Aside Order Requiring Disclosure of Twitter Users’ IP Addresses

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