eDiscovery Daily Blog

NY Appeals Court Extends Discoverability of Social Media Photos to “Tagged” Photos: eDiscovery Case Law

In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

It’s rare that we can include the entire case opinion in our blog post, but, in perhaps the shortest case ruling we’ve ever covered, here is that case opinion.

“Private social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’ (Patterson v. Turner Const. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v. Henkin, 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018]; see also Abdur–Rahman v. Pollari, 107 A.D.3d 452, 454, 967 N.Y.S.2d 31 [1st Dept. 2013] ).

So, what do you think?  Should discoverability of photos be extended to photos where the party is “tagged” in the photo or should privacy concerns weigh heavier here?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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