Can Social Media Accounts Be Used Against a Plaintiff in a Lawsuit?

By Peter DeFilippis

Founder, Law Offices of Peter DeFilippis & Associates. specializing in Personal Injury, Medical Malpractice, Business Law, and Contract Law

Defense attorneys’ discovery demands served during the course of personal injury litigation have caught up with the digital age. Attorneys defending against personal injury and medical malpractice lawsuits are now readily requesting printed copies of the Plaintiffs’ social media posts. They are asking for any and all comments or images uploaded on social media, medical or online forums relevant to the alleged incident or injury. The questions are: is the mere possession and utilization of an online media account sufficient basis to inspect such usage or must the Defense first prove that the materials are factually relevant to Plaintiff’s claims thereby protecting against an invasion of protected privacy?

So far, more courts’ rulings seem to come down in favor of the Plaintiffs’ privacy interests and less in favor of the wholesale invasion of privacy. The Courts in New York are generally putting strict limitations on Defense requests for access to online activities which have no established basis in fact.

According to the Appellate Division for the First Department, covering Manhattan and The Bronx, the contents of some “public” portion of the social media profile or disclosure by Plaintiff during deposition have to indicate the online information contradicts or conflicts with Plaintiff’s claims. Arguing such material may lead to the discovery of relevant evidence is not enough to force Plaintiff to make private account contents available to the Defense. Based on recent decisions, the Defense must first display relevance on this point using facts as keys to open the doors to further disclosures. It is not Plaintiff’s burden to prove irrelevance.

Participation in online platforms, in and of itself,  is not sufficient to compel Plaintiff to provide the Defense with unfettered access to social media accounts or to have the court conduct a private inspection of the account’s usage. Defendants must first and foremost identify information in a Plaintiff’s Facebook account that is squarely at odds with the alleged restrictions, disabilities, or losses in the case to warrant this level of obtrusiveness. If the Defendants cannot demonstrate the existence of these facts in social media, the Court will likely not press the Plaintiffs to comply with the Defense request. Arguments that Facebook postings or Twitter feed may potentially reveal daily activities contrary to Plaintiff’s claims amount to nothing more than baseless requests by the Defense to conduct a “fishing expedition.” Without facts to back up their demands, Defendants may find their attempts to access Plaintiff’s Instagram or other social media site content receiving the “thumbs down” from the courts.

Strong and knowledgeable Plaintiffs’ counsels should object to this document request on the grounds that it is vague and overbroad, burdensome and oppressive, and is a bad-faith fishing expedition that is not reasonably calculated to lead to the discovery of admissible evidence.

Moreover, a demand for unfettered access to social media information without any factual predicate that social media can lead to relevant information is routinely objected to by our firm as overbroad and palpably irrelevant.  On behalf of Plaintiffs, we further object because the defendants have more than likely not made a threshold evidentiary showing that the private sections of any social media account belonging to the plaintiff contain information that undermines the Plaintiff’s claims. See, Forman v. Henkin, 30 N.Y.3d 656 [2018] (“That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable.  Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation—such an order would be likely to yield far more non-relevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from unnecessarily onerous application of the discovery statutes”). Potts v. Dollar Tree Stores, Inc., No. 11-CV-1180, 2013 U.S. Dist. LEXIS 38795 [M.D. Tenn., 2013]; Keller v. Nat’l Farmers Union Property & Casualty Co., No. 12-CV-72, 2013 U.S. Dist. LEXIS 452 [D. Mont., 2013]; Tompkins v. Detroit Metro. Airport, 278 lineF.R.D. 387 [E.D. Mich., 2012]; Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 293 F.R.D. 112 [E.D.N.Y., 2013]; Glazer v. Fireman’s Fund Ins. Co., 2012 U.S. Dist. LEXIS 51658, (S.D.N.Y., 2012); Forman v. Henkin, 134 A.D.3d 52 [1st Dept., 2015]; Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620 [1st Dept., 2013]; Patterson v. Turner Constr. Co., 88 A.D.3d 617 [1st Dept., 2011]; Shackelford-Johnson v. tlineJamaica First Parking, LLC, 2015 NY Slip Op 30898(U) [Sup. Ct., 2015]; Richards v. Hertz Corp., 100 A.D.3d 728 [2nd Dept., 2012]; Fawcett v. Altieri, 38 Misc. 3d 1022 [Sup. Ct., 2013]; Greenfield v. Bd. Of Assessment Review for Town of Babylon, 106 A.D.3d 908 [2nd Dept., 2013; and Kregg v. Maldonado, 98 A.D.3d 1289 [4th Dept., 2012], Pecile v Titan Capital Group, LLC, 113 AD3d 526 (1st Dept 2014).

As a matter of course, our firm takes a hard line against broad fishing expeditions into our client’s personal and business accounts and medical records. We demand that the relevancy to the matter at hand be clear and established before complying with any overly broad, vague, and irrelevant demands for information. We are diligent counsel always doing what is legally necessary and in the best interests of our clients.

At Peter DeFilippis & Associates, consultations are always free and we do not get paid unless we recover money for you and/or your family. Contact us today. Call 212-227-4001 or 914-478-7777 or see our website at