The Appellate Division of the Supreme Court of the State of New York, First Department, a mid-level appeal Court that hears appeals from New York (Manhattan) and Bronx Counties, unanimously reversed the trial Court in favor of the defense on an important discovery issue involving social media. The First Department, in Vasquez-Santos v. Mathew, 2019 NY Slip Op 00541 (January 24, 2019), held that “[private] social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims.'”

The Plaintiff was a semi-pro basketball player. He claimed he was disabled as a result of an auto accident. He claimed he could no longer play basketball, but, after the accident, photos were posted on social media of him playing basketball. Plaintiff asserted these photos showed games played before the accident. The First Department held: “defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury.” The Court held that the defense must be entitled to access to plaintiff’s accounts and devices, limited in time to after the accident, and limited in subject matter to playing basketball or other similar physical activities.

The takeaway is that the Court will permit the defense broad latitude to discover information posted on social media. Both plaintiffs and defense counsel in personal injury matters should take note.