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Fawcett v. Altieri

Supreme Court, Richmond County

January 11, 2013

Gina L. Fawcett, as Parent and Natural Guardian of JOHN FAWCETT, JR., an Infant, and GINA L. FAWCETT, Individually, Plaintiffs
v.
Nicholas Altieri, GERARD L. ALTIERI, as Parent and Natural Guardian of NICHOLAS ALTIERI, an Infant, LAURA M. ALTIERI, as Parent and Natural Guardian of NICHOLAS ALTIERI, an Infant, and ST. JOSEPH BY THE SEA HIGH SCHOOL, Defendants

Plaintiffs are represented by the law firm of Russo, Scamardella & D'Amato. Defendants Altieri are represented by the law firm of Peisner Gerard Girsh & Schaefer. Defendant Saint Joseph by the Sea High School is represented by the law firm of Connors & Connors, P.C.

JOSEPH J. MALTESE, Justice of the Supreme Court.

The defendants move and cross-move to compel the production of the social media files of the plaintiff, John Fawcett, Jr. The plaintiff cross-moves for a protective order preventing the production of his social media files. The motion and cross-motion made by the defendants to compel the production of John Fawcett, Jr.'s social media files is denied. The plaintiff's cross-motion for a protective order is also denied.

Facts

This is an action to recover for personal injuries allegedly sustained by the plaintiff, John Fawcett, Jr., a high school student during an altercation with the defendant, Nicholas Altieri, another high school student, at a tennis match at St. Joseph By the Sea High School, in Staten Island, New York. The plaintiff sets forth causes of action against the defendants for assault, battery, negligence and loss of services. The plaintiff's bill of particulars states that he sustained an injury to his right eye.

During the course of the litigation the defendants demanded:

... authorizations to permit the defendants to obtain full access to and copies of Plaintiff's current and historical records and/or information and photographs on Plaintiff's social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.

Defendants contend that the plaintiff's social media accounts are not publically viewable and they have been made private with no information available for public consumption. It is unclear when the plaintiff made his social media accounts private.

Discussion

This court must evaluate the relevance of social media accounts in the pre-trial discovery phase of a civil action alleging personal injuries. While social media web sites may be a relatively new phenomenon, the liberal interpretation of the words "material and necessary" in CPLR § 3101(a) remains applicable. The liberal interpretation of the words "material and necessary" require disclosure, upon request, of any facts bearing on the controversy that will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity. A party's right to discovery is not unlimited, however, and may be curtailed when it becomes an unreasonable annoyance and tends to harass and overburden the other party. [1]

It is without dispute that plaintiffs, who place their physical condition in controversy may not shield from disclosure material, which is necessary for the defense of the action. [2] It is equally well accepted that discovery is permitted with respect to not only materials having to do with liability, but also to damages as well. [3]

A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveal a two prong analysis before courts compel the production of the contents of social media accounts. This inquiry requires a determination by the court as to whether the content contained on/in a social media account is "material and necessary;" and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights. [4]

"Material and Necessary"

Setting aside the fact that John Fawcett, Jr. turned eighteen years old, the plaintiff submits the affidavit of his mother Gina Fawcett to support his cross-motion. In her affidavit she states that her son, "... stated to [her] that he has no specific memory of using, discussing this attack, or his injury using social media." Furthermore, plaintiff's counsel argues that access to the plaintiff's social media accounts sought by the defendants are not relevant to mount a defense against an allegation of civil assault battery or negligence. However, to accept such an argument would ignore the defendants' right to seek discovery relating to the damages John Fawcett, Jr. sustained as a result of this altercation. Plaintiff's bill of particulars ...


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