There is an evolving body of case law relating to the discoverability of social media. Recently, a New York state appellate decision extended access to plaintiffs’ posts to include private photos in which they are “tagged,” in addition to private photos they posted or published.

Generally, social media discovery can be classified as either private (only able to be seen and accessed by certain people, such as friends on Facebook) or public (accessible to anyone on the internet).

New York’s Appellate Division, First Department, in a recent decision, Vasquez-Santos v. Mathew, 2019 NY Slip Op 00541 (1st Dep’t 2019) extended access to private posts by a plaintiff. The Court had previously ruled that social media information in general can be discoverable by a defendant to the extent that it contradicts or conflicts with a claim by the plaintiff, in Tapp v New York State Urban Dev. Corp. 102 A.D.3d 620 (1st Dep’t 2013). Later, the Court of Appeals held that even the private portion of a plaintiff’s Facebook account is discoverable if it is reasonably likely to yield relevant evidence. Forman v Henkin 30 N.Y. 3d 656 (2018).

Tagging a basketball player makes photos discoverable

In Vasquez-Santos, the Court further broadened the allowable social media discovery. In this case, the plaintiff, a semi-professional basketball player, claimed that as a result of an automobile accident he was rendered disabled and incapable of playing basketball. He testified that all pictures on social media, even those posted after the accident, were in games played before the accident. However, the Court held that defendant was entitled to these photos.

Plaintiff attempted to make a distinction between the photos that he posted and the photos that other people posted in which he was “tagged.” All of these photos were private, meaning only he and his friends had access to them. The Court held that the discovery was not limited to photos posted by the plaintiff, but also included photos that others “tagged” him in. In order to obtain these photos, defendant was allowed access to plaintiff’s account and devices, limited in time to items posted or sent after the accident and limited in subject matter to items discussing or showing plaintiff engaging in physical activity.

This decision follows Forman in compelling disclosure of private photos on social media that are likely to yield relevant evidence. However, this decision goes further by compelling disclosure not only of photos posted by the plaintiff, but also photos posted by others in which plaintiff was “tagged.” The Court held that, as long as plaintiff’s account had access to the photos, they were discoverable.

Defendants’ attorneys should be mindful of the need for a basis for demanding social media information, including private photos from a plaintiff’s social media accounts. The best way to establish such a basis may be by questioning plaintiff at his or her deposition concerning the existence of photos or posts to social media. The Vasquez-Santos decision means defendants should also make sure to not just question plaintiff about “posted” private photos, but also about private photos in which they were “tagged.”