Winchell v. Lopiccolo
Justice Paul Marx
Lopiccolo defendants sought to compel Winchell to produce, among other things, authorization for access to her Facebook page in this personal injury action arising from a motor vehicle accident. Defendants sought such authorization to discover what the page reveals about Winchell's "ability to portray cognitive function." They argued the manner in which plaintiff used her Facebook page, including lucidity of her statements, would "illuminate the nature and extent of her claimed neurological and psychological injury." Winchell opposed arguing defendants failed to demonstrate any factual predicate for their request to "unfettered access" to her personal information, noting her cognitive functioning was far more credibly represented by her school transcripts. The court agreed stating "'digital fishing expeditions'" were not less objectionable than their analog antecedents." It found defendants failed to contend that the information on the Facebook page would contradict Winchell's claims of injury or damages, noting their "hope" to discover such information in their search was impermissible. Thus, the court found defendants' request for unrestricted access overbroad, denying the motion to compel.