Privacy, Discovery and Social Media

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This post examines an opinion the New York Supreme Court – Richmond County issued in a civil case:  Fawcett v. Altieri, 38 Misc.3d 1022, 960 N.Y.S.2d 592 (New York Supreme Court - Richmond County 2013).  The case involves a suit to

recover for personal injuries allegedly sustained by the plaintiff, John Fawcett, Jr., a high school student during an altercation with the defendant, Nicholas Altieri, another high school student, at a tennis match at St. Joseph By the Sea High School, in Staten Island, New York.

Fawcett v. Altieri, supra.  The defendants are Nicholas Altieri, his parents Gerald L. and Laura M. Altieri and St. Joseph by the Sea High School.  Fawcett v. Altieri, supra. 

The opinion notes that the plaintiff’s complaint “sets forth causes of action against the defendants for assault, battery, negligence and loss of services” and alleges that John Fawcett, Jr. “sustained an injury to his right eye” in the altercation alleged in the complaint.  Fawcett v. Altieri, supra.  In this opinion, the court is ruling on a dispute about discovery, which, as Wikipedia explains, is the

pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for admissions and depositions. 

You can, if you are interested, find a summary of New York discovery law here.

The issue the court is dealing with arose when the defendants moved “to compel the production of the social media files of the plaintiff, John Fawcett, Jr.” and Fawcett, the plaintiff, “cross-move[d] for a protective order preventing the production of his social media files.”  Fawcett v. Altieri, supra.  More precisely, the defendants demanded

`. . . authorizations to permit the defendants to obtain full access to and copies of Plaintiff's current and historical records and/or information and photographs on Plaintiff's social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.’

Defendants contend that the plaintiff's social media accounts are not publically viewable and they have been made private with no information available for public consumption. It is unclear when the plaintiff made his social media accounts private.

Fawcett v. Altieri, supra (quoting Defendants’ motion).

The Supreme Court began its opinion by noting that the parties’ motions required it to

evaluate the relevance of social media accounts in the pre-trial discovery phase of a civil action alleging personal injuries. While social media web sites may be a relatively new phenomenon, the liberal interpretation of the words “material and necessary” in New York Civil Practice Law and Rules [CPLR] § 3101(a) remains applicable.

Fawcett v. Altieri, supra. 

CPLR § 3101(a) states that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” by various enumerated categories of parties to the suit, witnesses and others with material evidence, experts, etc.  In the rest of the passage quoted above, the Supreme Court explained that the

liberal interpretation of the words `material and necessary’ require disclosure, upon request, of any facts bearing on the controversy that will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. A party's right to discovery is not unlimited, however, and may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party. . .

Fawcett v. Altieri, supra. 

The court also noted that it

is without dispute that plaintiffs, who place their physical condition in controversy may not shield from disclosure material, which is necessary for the defense of the action  It is equally well accepted that discovery is permitted with respect to not only materials having to do with liability, but also to damages as well.

Fawcett v. Altieri, supra. 

The Supreme Court then noted that, as to the law specifically applicable to the issue raised by this case, a survey of relevant New York cases

dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts. 

This inquiry requires a determination by the court as to whether the content contained on/in a social media account is `material and necessary;’ and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights.

Fawcett v. Altieri, supra. 

The court began with the issue of whether the information was “material and necessary”:

Setting aside the fact that John Fawcett, Jr. turned eighteen years old, the plaintiff submits the affidavit of his mother Gina Fawcett to support his cross-motion. In her affidavit she states that her son, `. . . stated . . . that he has no specific memory of using, discussing this attack, or his injury using social media.’ 

Furthermore, plaintiff's counsel argues that access to the plaintiff's social media accounts sought by the defendants are not relevant to mount a defense against an allegation of civil assault battery or negligence.

However, to accept such an argument would ignore the defendants' right to seek discovery relating to the damages John Fawcett, Jr. sustained as a result of this altercation. Plaintiff's bill of particulars states that the injuries he sustained as a result of this incident will continue to affect him socially, educationally, economically, and in the way he pursues recreation into the future.

Fawcett v. Altieri, supra. 

The Supreme Court noted that the New York Supreme Court –Appellate Division

allows for broad discovery on the issue of damages where a plaintiff states a general loss of the enjoyment of life due to injuries sustained as a result of an accident. . . . However, at this early stage in litigation it is unclear as to whether this information will yield `material and necessary’ information, or . . . is merely a fishing expedition as the plaintiff suggests.

Fawcett v. Altieri, supra. 

It then explained that

[s]ocial media web sites, such as Facebook and Twitter, exist to allow individuals to interact with `real world’ friends, relatives and those individuals sharing common interests that may be as close as your own town, or as far away as a distant continent. 

The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet.

Whether these broadcasts take the form of `tweets,’ or postings to a user's `wall,’ the intent of the users is to disseminate this information. Judge Matthew Sciarrino pointed out in his decision concerning an `Occupy Wall Street’ protestor charged in the Criminal Court of New York County that, `[i]f you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy.’

Fawcett v. Altieri, supra (quoting People v. Harris, 36 Misc.3d 868, 949 N.Y.S.2d 590 (Criminal Court, City of New York, New York County 2012)).

The Supreme Court pointed out that “[a]t the end of 2009 Facebook reset user privacy settings to default all profiles to public from private”, but that “these privacy settings did not prevent the president of the Queer Chorus at the University of Texas to add these two students to a Facebook discussion group which `outed’ them to all of their Facebook friends, regardless of the pre-set privacy settings.” Fawcett v. Altieri, supra. 

Having made that observation, the court explained that the New York Supreme Court – Appellate Division held in Patterson v. Turner Construction Company, 88 A.D.3d 617, 931 N.Y.S.2d 311 (2011) that materials posted on a Facebook page would not be

shielded from discovery in a civil matter `. . . merely because plaintiff used the service's privacy settings to restrict access . . .’ if the material is relevant to the litigation. These materials may be subject to production just as material from a personal diary may be discoverable.

While the ultimate privacy and subsequent disclosure of social media postings are disputable, the facts in this case are not developed to either compel or preclude their discovery. There must be a clear factual predicate in order to compel the production of social media records from the defendants or authorizations for the production of that material from certain social media providers.

Consequently, on the facts before this court depositions must be conducted before one can properly determine whether the plaintiff should be compelled to produce social media records; and conversely, whether the defendants should be precluded from accessing this information.

Fawcett v. Altieri, supra. 

The Supreme Court concluded by noting that information posted on social media

accounts are freely discoverable and do not require court orders to disclose them. However, this court will not go so far as to hold that all social media records are material and necessary based solely on the fact that many people avail themselves to these social media sites. . . .

[T]o obtain a closed or private social media account by a court order for the subscriber to execute an authorization for their release, the adversary must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand. 

The courts should not accommodate blanket searches for any kind of information or photos to impeach a person's character, which may be embarrassing, but are irrelevant to the facts of the case at hand.

Fawcett v. Altieri, supra.  It therefore denied the defendants’ motion to compel the production of the plaintiff’s “social media files”.  Fawcett v. Altieri, supra.