Earlier this month a New York Appellate court ordered the complete disclosure of a personal injury Plaintiff’s Facebook account. In Richards v Hertz Corp., 2012 WL 5503841 —N.Y. Supp. 2d—, (NY AD 2d 2012, November 14, 2012) the Plaintiff claimed that her injuries from an automobile accident impaired her ability to participate in sporting activities and caused her to suffer pain that was exacerbated in cold weather. However, in the course of investigating the claim, the Defendant identified publically available images on the Plaintiff’s Facebook page “depicting [plaintiff] on skis in the snow,” (i.e. not only a sporting activity but in cold weather) and subsequently served a discovery demand requesting all her status reports, email, photos, and videos posted on her account since the date of the accident.
The Plaintiff objected to the request and ultimately a court motion was brought to resolve the discovery dispute. Initially, the trial court only directed that the injured plaintiff send defendants a copy of “every photo on Facebook” evidencing the injured plaintiff “participating in a sporting activity.” However, The Defendants appealed the order and the appellate court viewed the trial court’s order as too narrow, finding that defendants demonstrated that the injured Plaintiff’s profile contained an image that was “probative” of the issue as to the extent of her injuries, and finding in turn that “other portions of her Facebook profile may contain further evidence relevant to that issue.”
The appellate court ruled that defendant made “a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”
Regular readers of this blog will note that there is nothing new here as we have covered many similar recent cases with this type of fact pattern and outcome. But it is notable that such cases are becoming very routine. Also, it should be very clear by now that any law firm defending or prosecuting personal injury claims – as well as their hired eDiscovery consultants — should be investigating social media sites for sources evidence as a matter of course. As attorney John Browning pointed out earlier on this blog, any attorney who fails to do so may be violating their ethical duty of competence.
“leveraging Facebook is just one of many ways law enforcement officials are gleaning evidence from social media to help them solve crimes.” According to a recent survey performed by LexisNexis on federal, state and local law enforcement officials who use social media, 4 of 5 used social media to gather evidence during investigations. Kelly states, “Half said they checked social media at least once a week, and the majority said social media helps them solve crimes faster.”
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