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Social Media Networks: Access Denied

February 1, 2013

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In the current age of electronic discovery, social media networks provide an insight into a plaintiff’s state of mind and daily activities, which was once otherwise impossible to obtain. In a blow to the defense, the First Department recently held that a 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. In <i>Tapp v. New York State Urban Dev. Corp., </i>the defendant sought an authorization for plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived. In affirming the lower court’s denial of defendant’s request, the First Department held that to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account. Specifically, they need to identify information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims." Given an individual’s ability to close their Facebook page to the public, and place various restrictions on who may access the content contained on their profile page, the First Department’s ruling makes it increasingly difficult to obtain access to social media networks, which may be a useful tool in challenging a plaintiff’s credibility at the time of trial.
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