Maltese, Joseph J., Justice
This case centered on an action to recover for personal injuries allegedly sustained by plaintiff John Fawcett, Jr. during an altercation with defendant Nicholas Altieri. The parties were high school students, and the altercation took place following a tennis match at St. Joseph By the Sea High School, in Staten Island, New York. Plaintiff sued defendants for assault, battery, negligence and loss of services; plaintiff's bill of particulars stated that he sustained an injury to his right eye.
Though it was unclear whether plaintiff made his social media accounts private, defendants sought discovery of and full access to plaintiff's social media accounts, including any he may have held with Facebook, MySpace, Friendster, and Flickr. Defendants contended that plaintiff's social media accounts were not publicly viewable and they had been made private with no information available for public consumption.
The issue this case presented for the Supreme Court's review was whether the social media accounts were relevant in the pre-trial discovery phase of this personal injury litigation. "While social media web sites may be a relatively new phenomenon, the liberal interpretation of the words 'material and necessary' in CPLR section 3101(a) remains applicable." The liberal interpretation of the words required disclosure, upon request, any facts bearing on the controversy that would help parties prepare for trial. A party's right to discovery could be curtailed if the request became an "unreasonable annoyance" and tended to "overburden the other party."
A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, revealed a two prong analysis before courts compel the production of the contents of social media accounts: (1) a determination by the court as to whether the content contained on/in a social media account is “material and necessary;” and (2) a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights.
Setting aside the fact that John Fawcett, Jr. turned eighteen years old, plaintiff submitted the affidavit of his mother Gina Fawcett to support his cross-motion. In her affidavit she stated 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 argued that access to the plaintiff's social media accounts sought by defendants were not relevant to mount a defense against an allegation of civil assault battery or negligence. The Supreme Court concluded that because this case was in the early stages of litigation, it was unclear whether information on the social media accounts would yield "material and necessary" information, or whether it was merely a "fishing expedition" as plaintiff suggested: "[w]ith the volume of cases pending before our courts, simply requesting authorizations for all social media from all or most of the litigants will create an unmanageable volume of documents to be reviewed in the hope that some information directly relevant to the case will be uncovered. More likely, the information obtained would be irrelevant to the actual facts of the case, but may be used in an attempt to discredit the adversary with collateral matters. As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media."
The Court denied defendants' request for access to plaintiff's social media accounts pending further discovery.
v.
NICHOLAS ALTIERI, an Infant, et al., Defendants
Counsel
Russo, Scamardella & D'Amato, for Plaintiffs.Peisner Gerard Girsh & Schaefer, for Defendants Altieri.
Connors & Connors, P.C., for Defendant Saint Joseph by the Sea High School.
Opinion
... 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.
*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—doing a privacy change for 350 million users is not the kind of thing that a lot of companies would do. But we viewed that as a real important thing, to always keep a beginner's mind and what would we do if we were starting the company now and we decided that these would be the social norms now and we just went for it.[9]