Patterson v. Turner Constr. Co.
Patterson v. Turner Constr. Co.
88 A.D.3d 617 (N.Y. App. Div. 2011)
October 27, 2011
Summary
The Supreme Court of New York County granted defendants' motion to compel an authorization for all of plaintiff's Facebook records. The Court of Appeals unanimously reversed this decision, finding that not all Facebook communications may be related to the events that gave rise to plaintiff's cause of action. This case highlights the importance of ESI in legal proceedings, and the need for courts to make specific determinations about the relevance of such information.
RUSSELL PATTERSON, Appellant,
v.
TURNER CONSTRUCTION COMPANY et al., Respondents
v.
TURNER CONSTRUCTION COMPANY et al., Respondents
101638/09, 5653N, 5654N
Supreme Court, Appellate Division, First Department, New York
October 27, 2011
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 7, 2011
Counsel
Ephrem J. Wertenteil, New York, for Appellant.Kopff, Nardelli & Dopf LLP, New York (Martin B. Adams of counsel), for Respondents.
Panel members:
Tom, Peter,
Saxe, David B.,
DeGrasse, Leland G.,
Freedman, Helen E.,
Roman, Nelson S.
Opinion
*617 Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered April 7, 2011, which, in an action for personal injuries, granted defendants' motion to compel an authorization for all of plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived, unanimously reversed, on the law and the facts, without costs, and the matter remanded for a more specific determination. Appeal from order, same court and Justice, entered January 24, 2011, which deferred determination on defendants' motion to compel to the extent of directing plaintiff to produce *618 his Facebook records for an in camera review, unanimously dismissed, without costs, as taken from a nonappealable paper.
1Plaintiff claims damages for physical and psychological injuries, including the inability to work, anxiety, post-traumatic stress disorder, and the loss of enjoyment of life. Although the motion court's in camera review established that at least some of the discovery sought “will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims” (Abrams v. Pecile, 83 A.D.3d 527, 528, 922 N.Y.S.2d 16 [2011] [internal quotation marks and citation omitted] ), it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action (see Offenback **312 v. L.M. Bowman, Inc., 2011 WL 2491371, *2, 2011 U.S. Dist. LEXIS 66432, *5–8 [M.D.Pa.2011] ). Accordingly, we reverse and remand for a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.
2The postings on plaintiff's online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service's privacy settings to restrict access (Romano v. Steelcase Inc., 30 Misc.3d 426, 433–434, 907 N.Y.S.2d 650 [2010] ), just as relevant matter from a personal diary is discoverable (see Faragiano v. Town of Concord, 294 A.D.2d 893, 894, 741 N.Y.S.2d 369 [2002] ).
Dismissal of the appeal from the January 24, 2011 order is warranted because the order does not affect a substantial right and is not otherwise appealable as of right (see Marriott Intl. v. Lonny's Hacking Corp., 262 A.D.2d 10, 690 N.Y.S.2d 569 [1999]; Garcia v. Montefiore Med. Ctr., 209 A.D.2d 208, 209, 617 N.Y.S.2d 775 [1994]; CPLR 5701[a][2][v] ).