The increasing reliance on technology and use of social media in today's society creates a new frontier of discovery and evidence in personal injury lawsuits. The ability to post and communicate about one's daily activities provides a platform for defendants to assess the veracity of a plaintiff's claims. The question for a court is ultimately to what extent defendants should be allowed to delve into a plaintiff's social media activity in an effort to obtain relevant evidence.
On December 17, 2015, a panel of appellate judges in Manhattan ruled, in a 4-1 decision, that a personal injury plaintiff's Facebook posts were not discoverable by defendants "based merely on speculation that some relevant information might be found." In a dissent, Justice David Saxe argued that defendants should be allowed access to a plaintiff's Facebook activity where the plaintiff claims to be physically unable to engage in certain activities. Justice Saxe explained that photographs, status updates, and general communications could verify the integrity of these claims.
The majority, however, argued that such a generalized justification for access to a plaintiff's social media activity could be applied to any and all personal activities and communications such as text messages, emails, and journal entries. The justices explained that to be granted access to a plaintiff's Facebook activity, a defendant must demonstrate that such access is "likely to result in the disclosure of relevant information bearing on the claims." The access sought by defendants in that case, the majority explained, was nothing more than "unbridled disclosure...based merely on speculation." Such disclosure, according to the Court, "is the very type of 'fishing expedition' that cannot be countenanced."