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Supreme Court, Richmond County, January 11, 2013
APPEARANCES OF COUNSEL
Peisner Gerard Girsh & Schaefer for Nicholas Altieri and others, defendants. Connors &
Connors, P.C., for Saint Joseph by-the-Sea High School, defendant. Russo, Scamardella & D'Amato for plaintiff. {**38 Misc 3d at 1023} OPINION OF THE COURT Joseph J. Maltese, J. The decision and order on the motion and cross motions is as follows:
The defendants move and cross-move to compel the production of the social media files of the plaintiff, John Fawcett, Jr. The plaintiff cross-moves for a protective order preventing the production of his social media files. The motion and cross motion made by the defendants to compel the production of John Fawcett, Jr.'s social media files is denied. The plaintiff's cross motion for a protective order is also denied.
Facts
This is an action 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. The plaintiff sets forth causes of action against the defendants for assault, battery, negligence and loss of services. The plaintiff's bill of particulars states that he sustained an injury to his right eye.
During the course of the litigation 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.
Discussion
This court must evaluate the relevance of social media accounts in the pretrial discovery phase of a civil action alleging{**38 Misc 3d at 1024} personal injuries. While social media websites may be a relatively new phenomenon, the liberal interpretation of the words "material and necessary" in CPLR 3101 (a) remains applicable. The liberal interpretation of the words "material and necessary" requires 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.[FN1] [*2]
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.[FN2] It is equally well accepted that discovery is permitted with respect to not only materials having to do with liability, but to damages as well.[FN3]
A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveals 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.[FN4]
"Material and Necessary"
Setting aside the fact that John Fawcett, Jr. turned 18 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 to [her] that he has no specific memory of using, discussing this attack, or his injury using social media." Furthermore, plaintiff's counsel argues that the access to the plaintiff's social media accounts sought by the defendants is 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{**38 Misc 3d at 1025} 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.
The Appellate Division, Second Department 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. In Abdalla v Mazl Taxi, Inc., the Appellate Division, Second Department compelled a plaintiff to disclose his medical records pertaining to his diabetes based on his broad allegations contained in his bill of particulars, including the "claimed loss of enjoyment of life due
to his current injuries."[FN5] However, at this early stage in litigation it is unclear as to whether this information will yield "material and necessary" information, or whether it is merely a fishing expedition as the plaintiff suggests. [*3]
Social media websites, such as Facebook[FN6] and Twitter,[FN7] 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, Jr. 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 if you scream it out the window, there is no reasonable
expectation of privacy."[FN8]
At the end of 2009, Facebook reset user privacy settings to default all profiles to public from private. In early 2010 after this setting change, Facebook's president and founder Mark Zuckerberg, in an interview with TechCrunch, responded to the question "where is privacy on the web going?" as follows:
{**38 Misc 3d at 1026}"When I got started in my dorm room at Harvard, the question a lot of people asked was 'why would I want to put any information on the Internet at all? Why would I want to have a website?'
"And then in the last 5 or 6 years, blogging has taken off in a huge way and all these different services that have people sharing all this information. People have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people. That social norm is just something that has evolved over time.
"We view it as our role in the system to constantly be innovating and be updating what our system is to reflect what the current social norms are.
"A lot of companies would be trapped by the conventions and their legacies of what they've built, doing a privacy change

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