On January 24, 2019, the New York State Appellate Division dealt a blow to a personal injury plaintiff’s right to privacy on social media. In the case of Vasquez-Santos v Matthew, 2019 N.Y. App. Div. LEXIS 527 the Court held that private social media information can be discoverable to the extent it apparently contradicts or conflicts with a plaintiff’s alleged restrictions, disabilities, and losses, and other claims.
In Vasquez-Santos, the plaintiff, a semi-professional basketball player, alleged that the injuries he sustained in a motor vehicle accident prevented him from performing certain activities, including basketball. When confronted with photos posted on his Facebook page depicting him playing basketball, he explained that the photos were from games played before the accident. A dispute arose as to whether the defendants could legally access the plaintiff’s private, password-protected social media accounts for purpose of searching deleted content, metadata and other evidence of basketball activity. The Appellate Division held that the defendant was entitled full access to plaintiff’s accounts and devices.
New York State discovery rules are liberal and require parties to disclose what is material and necessary to the case. Under this recent decision, a plaintiff who testifies that he can no longer play basketball (but has basketball photos on his page), cannot dance (but is seen dancing), or cannot focus for long periods of time (but writes poetry on their Facebook page), may be vulnerable to having the Court order them to grant access to their social media accounts.
It is unreasonable to expect personal injury plaintiffs to live an anti-social lifestyle during the pendency of their lawsuit. If you are a party to litigation due to injuries that were the result of someone else’s negligence, you should carefully review your existing social media privacy settings and your past content, and think twice before creating any posts that would create even the appearance of a lifestyle that contradicts your injury claims.
The attorneys at Velella & Basso have litigated countless personal injury claims, so we know the ins and outs of the law that will allow you to maximize your recovery. Call us today at (718) 931-1220 or schedule a free consultation online.
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