Social Media and Privacy Rights of Nonparties in Discovery

, New York Law Journal


Sherri Sonin and Robert J. Genis, partners at Sonin & Genis, discuss the rights of nonparty "friends" of a social media subscriber whose private emails and records are sought, including notice to them of the application, the right of nonparties to object to the disclosure, and consideration of potential embarrassment or annoyance such disclosure might cause them.

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What's being said

  • Bob Genis

    The recent lower court case of Winchell v Lopiccolo, 2012 NY Slip Op 22337 (Sup. Orange, Oct. 19, 2012), is also worth reading. The following is an excerpt from the decision.

    The Court is troubled by the breadth of Defendants' Request for authorization for Plaintiff's Facebook page because it seeks unrestricted access. While the Court recognizes Defendants' attempt to establish a factual predicate for their request, the fact is that every bit of information Plaintiff enters onto her Facebook page demonstrates some level of cognitive functioning. This Court's review of reported decisions in this area has not disclosed any instance where such unfettered access was allowed, unless the requesting party first showed that information on the other party's public page contradicted their claims of injury or damages. See [*4]Romano v Steelcase, 30 Misc 3d at 430 ("In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action."). Defendants have not made that contention here. They hope to discover such information in their search. Defendants cannot point to anything concrete. Instead, they hope to divine the extent of Plaintiff's cognitive injuries from reading every bit of information on her Facebook page.

    The Court finds that Defendants' Request for unrestricted access to Plaintiff's Facebook page is overbroad. See Kregg v Maldonado, 2012 NY Slip Op 6454 [4th Dept 2012]; Patterson v Turner Construction Co., 88 AD3d 617, 931 NYS2d 311 [1st Dept 2011]; McCann v Harleysville Insurance Co. of New York, 78 AD3d 1524, 910 NYS2d 614 [4th Dept 2010]; Caraballo v City of New York,

    2011 Slip Op. 30605U [Sup Ct, Richmond County 2011]; Matter of Progressive Insurance Co. v Herschberg, 2011 NY Slip Op 31288U [Sup Ct, Queens County 2011]. In addition to the cases cited, the Court finds persuasive the reasoning of a federal case addressing the same issue of access to a Facebook account in a somewhat analogous situation where the party's claims involved damage to her mental and emotional health. See E.E.O.C. v Simply Storage Management, LLC, 270 FRD 430 [SD Ind. 2010]. As the court there stated, "[a]lthough ... the contours of social communications relevant to a claimant's mental and emotional health are difficult to define, that does not mean that everything must be disclosed." Id. at 434. While "anything that a person says or does might in some theoretical sense be reflective of her emotional state," it does not justify "requiring the production of every thought she may have reduced to writing, or, indeed, the deposition of everyone she may have talked to." Id. at 435 (quoting Rozell v Ross-Holst, 2006 WL 163143 [SDNY Jan. 20, 2006]). Similarly, "the contours of social communications relevant to" Plaintiff's cognitive functioning are hard to define but do not justify the blanket disclosure that Defendants request. "[I]t must be the substance of the communication that determines relevance." Id. at 435.

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