New York's Appellate Division Continues Trend On Discoverability Of Social Media

Author:Mr Harold Gordon and Rebekah E. Blake
Profession:Jones Day

The NY courts are focusing on the appropriateness of discovery sought regardless of the technology in which it is contained.

As the New York appellate courts continue to consider the discoverability of social media, on January 24, 2019, the New York Appellate Division held in Vasquez-Santos v. Mathew that the defendant may utilize the services of a "data mining" company for a widespread search of the plaintiff's devices, email accounts, and social media accounts for certain discoverable information regarding the credibility of his claim.

Vasquez-Santos is an extension of the recent NY Court of Appeals decision, Forman v. Henkin, holding that a user's "private" Facebook messages and photos are subject to disclosure where that information is "reasonably calculated to contain evidence material and necessary to the litigation."

Plaintiff Vasquez-Santos used to play semi-professional basketball and alleged that his athletic career came to an end following a motor vehicle accident. Plaintiff claimed Facebook photos posted after the accident depicting him continuing to play basketball were taken before his accident. To rebut Plaintiff's claims, Defendant sought production of the metadata associated with the photos, potentially showing the date and time the photos were taken, with the assistance of a data mining company. The trial court denied Defendant's motion for such discovery.

Unanimously reversing, the Appellate Division granted...

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