Wednesday, October 3, 2012

No Fishing Allowed -- Fourth Department Reverses Order Granting Discovery of Plaintiff's Facebook, MySpace and Other Internet Postings

Kregg v. Maldonado
(4th Dept., decided 9/28/2012)

Christopher Williams was injured in a motor vehicle accident while driving a motorcycle manufactured and distributed by Suzuki Motor Corporation of Japan and American Suzuki Motor Corporation.  Charlotte Gregg, Williams' guardian, sued the owner and operator of the car involved in that accident and the Suzuki defendants.  After initial disclosure exchanges, the Suzuki defendants learned that family members of Williams had established Facebook and MySpace accounts for him and had made Internet postings on his behalf in connection with those accounts. The Suzuki defendants served additional discovery demands on the plaintiff, requesting the "entire contents" of those and any other social media accounts maintained by or on behalf of Williams.  When plaintiff refused to provide those materials, the Suzuki defendants moved to compel such disclosure.   Plaintiff opposed that motion on the grounds of relevance and burden, contending that the demand for disclosure was a "fishing expedition." Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure.

In REVERSING Supreme Court's order compelling the disclosure, the Appellate Division, Fourth Department, held:
Although CPLR 3101 (a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action," it is well settled that a party need not respond to discovery demands that are overbroad (see Optic Plus Enters., Ltd. v Bausch & Lomb Inc., 35 AD3d 1263, 1263). Where discovery demands are overbroad, " the appropriate remedy is to vacate the entire demand rather than to prune it' " (Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752, 753). In McCann v Harleysville Ins. Co. of N.Y. (78 AD3d 1524, 1525), we addressed a similar discovery demand and concluded that the request for access to social media sites was made without "a factual predicate with respect to the relevancy of the evidence" (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421). Here, as in McMann, there is no contention that the information in the social media accounts contradicts plaintiff's claims for the diminution of the injured party's enjoyment of life (cf. Romano v Steelcase, Inc., 30 Misc 3d 426, 427). As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident. Thus, we deny that part of the Suzuki defendants' motion to compel the disclosure of the entire contents of the injured party's social media accounts, without prejudice to the service of a more narrowly-tailored disclosure request.

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