Second Department Allows in Camera Review of Plaintiff’s Facebook Account

In November, the Supreme Court Appellate Division, Second Department, modified an order striking the defendants’ demand for status reports, pictures, and videos on the Facebook page of one of the two plaintiffs in the action. Originally the Kings County Supreme Court had denied the demand. On appeal, the Second Department ruled that an in camera review of the plaintiff’s Facebook account would be proper, in order to determine which postings were relevant to the plaintiff’s condition post-accident.

The original accident involved a car accident, after which the plaintiff, Michelle’le McCarthy, claimed that the accident hindered her ability to play sports. She also claimed pain and suffering, particularly in colder weather. During its investigation, the defense found unprotected pictures on the plaintiff’s facebook page showing her skiing after the accident. Although the Supreme Court denied the defendants’ demand, the court directed that all photos showing McCarthy “participating in a sporting activity” be sent to the defense.

The Second Department ruled that the lower court did not go far enough. Because a photo was found that did indeed have probative value, the Court determined that other information on McCarthy’s Facebook page could be relevant as well. However, because parts of the plaintiff’s page were privacy protected, the Appellate Court called for an in camera review to determine relevance as opposed to standard discovery procedure. In this manner, the judge would be able to decide which, if any, additional photos, status updates, or videos were relevant to the defendants’ case. Should the judge deem no additional information on the plaintiff’s page relevant, her privacy would remain undisturbed with respect to the rest of her Facebook account.

Underlying this Appellate decision is the issue of personal privacy rights, particularly in today’s world with the ubiquity of technology and social media. It should be noted that the second plaintiff’s Facebook account is not subject to the same in camera review. The Appellate decision is silent as to her privacy settings, but the Court does say that the defense was unable to find anything in her profile that would lead to the assumption that relevant information was available on her page. Had McCarthy taken more care to protect the privacy of her online profile, perhaps the Appellate Division would have found in her favor as well.

The Second Department’s decision can be found here on the website.

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