Marx, Paul I., Justice
In this personal injury action, the trial court denied defendants' motion to compel access to plaintiff’s Facebook page as overbroad but allowed defendants to serve a more narrowly-tailored request.
The genesis of this motion stemmed from a motor vehicle accident in 2009. Plaintiff alleged she suffered multiple injuries to her head and brain, affecting her cognitive functions. Defendants requested authorization to access Plaintiff's Facebook page for the purpose of discovering what the page revealed about Plaintiff's “ability to portray cognitive function” and alleged that
[t]he layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing, or a lack thereof, would be useful in the defense and/or assessment of this case.
The court denied defendants' motion without prejudice so that a more narrowly-tailored request could be made. The court was "troubled" by the breadth of Defendants' Request for authorization for Plaintiff's Facebook page because it sought unrestricted access:
For example, if plaintiff posted a message on Facebook saying that she has difficulty formulating the words to express her thoughts, the substance of the message is what should be considered to determine whether the message is relevant. Beyond that, once plaintiff formulates a message, the message itself may not reflect the effort expended in its formulation if the substance of the message does not contain any reference to that process. Even plaintiff's use of language and her ideas may be more reflective of her choice of expression rather than her ability. Furthermore, as plaintiff contends, to the extent that she has provided more reliable indicators of her cognitive abilities, defendants have made no showing that their request is not cumulative.
v.
CHANNING LOPICCOLO et al., Defendants
Counsel
Peter R. Eriksen, Esq., Jacobowitz and Gubits, LLP, Walden, for Plaintiff.Betsy N. Garrison, Esq., Robert M. Lefland, Esq., Eisenberg & Krish, Esqs., Liberty, for Defendant.
Opinion
“the layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof, would be useful in the defense and/or assessment of this case.”