Folks, before asking for it, make sure you can articulate how discovery into the plaintiff’s use of social networking sites is “reasonably calculated to lead to the discovery of admissible evidence.”
That’s the lesson of this new New York appellate case, McCann v. Harleysville Insurance Co., CA 10-00612, slip op. (N.Y.A.D. 4th Dept. Nov. 12, 2010). Don’t be like the (because we’re a defense-side blog, we’ll omit the adjectives we’re tempted to type) defendant in McCann, and just rotely demand a blanket “authorization for plaintiff’s Facebook account.” Slip op. at 1. You might well get back one of these:
We conclude . . . that the Supreme Court properly denied defendant’s motion “as overly broad,” without prejudice “to service of new, proper discovery demands.”
Why? Well, courts still aren’t comfortable with how to treat all this new-fangled stuff. We don’t think it’s any different than a plaintiff keeping a diary and letting other people read it. But courts might, so be careful out there – Facebook isn’t (yet) like a plaintiff’s medical records where relevance and discoverability is presumed. A defendant can get back the same type of “fishing expedition” objection that our side makes (or would like to make) in personal injury litigation:
Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.
Slip op. at 1-2 (this is one of the N.Y.A.D.’s typically cryptic memorandum opinions; we’re doing the best we can).
Still, even for a defendant caught out not being able to justify an overly ambitious discovery request, all was not lost. The McCann court vacated a protective order that the trial court (that’s a “Supreme Court” in New York’s peculiar parlance) had entered. Facebook material is not categorically exempt from discovery, once a defendant is able to articulate a plausible reason: “Under the circumstances presented here, the court
abused its discretion in prohibiting defendant from seeking disclosure of plaintiff’s Facebook account at a future date.” Slip op. at 2.
That really shouldn’t be too hard to do, if a defendant in a serious personal injury action simply takes the time to look at the public portions of the account – as a more diligent defendant did in the McMillan case we recently discussed. If the plaintiff is posting about, for example, anything that arguably concerns some activity that the complaint claims s/he’s no longer able to do as well as before – that should be all that’s necessary. But as McCann reminds us, ya gotta bring something to the table.