Summary
In Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, 958 N.Y.S.2d 392 1st Dept.2013, supra, this Court concluded that merely having a Facebook account does not establish a factual predicate for discovery of private material posted to a Facebook page.
Summary of this case from Forman v. HenkinOpinion
2013-01-31
Tyler N. TAPP, Plaintiff–Respondent, v. NEW YORK STATE URBAN DEVELOPMENT CORPORATION, etc., et al., Defendants–Appellants.
Dopf, P.C., New York (Martin B. Adams of counsel), for appellants. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
Dopf, P.C., New York (Martin B. Adams of counsel), for appellants. Sacks & Sacks, LLP, New York (Scott N. Singer of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, DeGRASSE, FREEDMAN, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered March 8, 2012, which, in this personal injury action, denied defendants' motion to compel an authorization for plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived, unanimously affirmed, without costs.
The motion court correctly determined that plaintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account—that is, information that “contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims” ( Patterson v. Turner Constr. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept.2011];see Kregg v. Maldonado, 98 A.D.3d 1289, 1290, 951 N.Y.S.2d 301 [4th Dept.2012] ). Defendants failed to identify relevant information.
Defendants' argument that plaintiff's Facebook postings “may reveal daily activities that contradict or conflict with” plaintiff's claim of disability amounts to nothing more than a request for permission to conduct a “fishing expedition” ( see e.g. McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 910 N.Y.S.2d 614 [4th Dept.2010] ).
We have considered defendants' remaining arguments and find them unavailing.