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New York Court Permits Disclosure Of Social Media Activity In Personal Injury Lawsuit

September 9, 2022

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<p style="text-align: justify;">Millions of Americans document their lives and activities on social media sites such as Facebook, Instagram and TikTok. When a person becomes injured in an accident and files a personal injury lawsuit, should defendants be permitted access to plaintiff’s social media?</p>
<p style="text-align: justify;">In <a href="https://www.wcmlaw.com/wp-content/uploads/2022/09/Gentile-v.-Ogden.pdf"><em>Gentile v. Ogden</em></a>, the New York Appellate Division, Second Department, recently addressed this question in a case involving a car accident. Plaintiff in that case alleged that she suffered serious neck, back and shoulder injuries that prevented her from performing her daily living activities. In light of such claims, defendants moved to compel the disclosure of all relevant social media activity from all of plaintiff’s social media accounts for a period of three years before the accident. The Supreme Court granted the motion and plaintiff appealed.</p>
<p style="text-align: justify;">The Second Department recognized that CPLR §3101(a) requires full disclosure of all matter material and necessary in the prosecution or defense of an action regardless of the burden of proof. It further observed that in order to receive such disclosure, a party need only show that the items sought are reasonably calculated to provide relevant information, not that the items actually exist. In rejecting plaintiff’s arguments and affirming the Supreme Court, the Second Department found that the defendants demonstrated that the plaintiff’s social media accounts were reasonably likely to yield relevant evidence regarding her alleged injuries and loss of enjoyment of life.</p>
<p style="text-align: justify;">The <em>Gentile</em> decision confirms that a personal injury plaintiff’s social media activity is fair game in discovery where his or her physical condition is at issue and the request is tailored to seek information relevant to their damages claims.</p>
<p style="text-align: justify;">Thank you to Gabriella Scarmato for her contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>

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