Nieves v. 30 Ellwood Realty LLC.
Nieves v. 30 Ellwood Realty LLC.
39 Misc.3d 63 (N.Y. App. Div. 2013)
April 11, 2013
Summary
The court ordered the plaintiff to produce her Facebook records for an in camera review to determine the extent of her alleged injuries. The court also retained the right to direct the plaintiff to conduct an initial review of her own Facebook account and limit the in camera inspection to items whose discoverability is contested by plaintiff. This case demonstrates the court's willingness to consider ESI, such as Facebook records, as evidence.
MILLIELY NIEVES, an Infant, by Her Parent and Natural Guardian, MILAGROS VASQUEZ, et al., Appellants,
v.
30 ELLWOOD REALTY LLC, Respondent
v.
30 ELLWOOD REALTY LLC, Respondent
570350/12
Supreme Court, Appellate Term, First Department
April 11, 2013
Appeal from an order of the Civil Court of the City of New York, New York County (Arlene Bluth, J.), entered March 12, 2012. The order granted defendant's motion to compel plaintiff to provide an authorization for all of her Facebook records.
Counsel
Jacoby & Meyers, Newburgh, and Finkelstein & Partners (Marie DuSault of counsel) for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Stacy I. Malinow of counsel), for respondent.
Panel members:
Schoenfeld, Martin,
Shulman, Martin,
Hunter, Alexander W.
Opinion
PRESENT: SCHOENFELD, J.P., SHULMAN, HUNTER, JR. JJ.
*64 Order (Arlene P. Bluth, J.), entered March 12, 2012, modified to the extent of directing plaintiff to produce her Facebook records compiled on or after the date of the accident for an in camera review of those records, and thereafter for a de novo determination of defendant's discovery motion; as modified, order affirmed, without costs.
The infant plaintiff claims damages for physical and psychological injuries, including the inability to engage in social activities, anxiety, depression, and posttraumatic stress disorder. Defendant demonstrated that plaintiff's Facebook profile contained photographs that were probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook records may contain further evidence relevant to that issue (see Patterson v. Turner Constr. Co., 88 A.D.3d 617, 931 N.Y.S.2d 311 [2011]; see also Richards v. Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 [2012] ). In these circumstances, and since “it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action” (Patterson v. Turner Constr. Co., 88 A.D.3d at 618, 931 N.Y.S.2d 311), the appropriate course is to remand the matter for an in camera inspection of plaintiff's Facebook records, to determine which of those records, if **809 any, are relevant to plaintiff's alleged injuries. To the extent that a thorough in camera inspection may prove unduly burdensome, the trial court retains broad discretion to set reasonable terms and conditions thereon (see generally Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S.2d 320 [2009]; Gillen v. Utica First Ins. Co., 41 A.D.3d 647, 839 N.Y.S.2d 155 [2007] ), including the right to direct plaintiff to conduct an initial review of her own Facebook account, and limit the in camera inspection to items whose discoverability is contested by plaintiff (see Offenback v. L.M. Bowman, Inc., 2011 WL 2491371, *3 n. 3, 2011 U.S. Dist. LEXIS 66432, *8, n. 3 [M.D.Pa. 2011] ).