In what legal experts view as a major blow to plaintiffs pursuing personal injury cases, a state appeals court in Manhattan ruled an expert witness for a defendant in a recent case should be allowed to examine a plaintiff’s electronic devices, social media accounts, and email in an effort to find evidence of physical activity following a motor vehicle accident.
This important ruling, made by the Appellate Division, First Department, of the New York Court of Appeals, was based largely on a decision the previous year, in which a defendant in a personal injury case was allowed access to items associated with a Facebook account. In this case, the items related to the Facebook account had been deemed private, but were later allowed to be part of the discovery process in conjunction with the plaintiff’s assertion she injured herself after falling off the defendant’s horse.
In what was initially started by a decision stating limiting discovery of a litigant’s public Facebook posts went against New York’s long-standing tradition of liberal discovery, a five-judge panel from the state’s First Department expanded the ruling to include not only Facebook posts, but also deleted materials, tags, and documents from email and social media platforms such as Twitter.
These rulings, coming about from a case involving Vasquez-Santos v. Matthew, are seen as now opening the door for defendants in these cases to examine virtually everything associated with a plaintiff’s online presence. According to Kenneth Pinczower, legal counsel for Nationwide Insurance, the First Department’s ruling will have a “major impact for discovery in personal injury cases.” Along with this, various legal experts agree this ruling will almost certainly eliminate the uncertainties many juries face when attempting to establish the credibility of parties involved in these types of lawsuits.
By now being able to obtain photographs, emails, and social media postings, defendants in personal injury cases and their attorneys will be able to have another tool available to challenge a plaintiff’s claims of how an injury occurred, as well as possibly be able to contradict claims involving the plaintiff’s inability to perform various activities after an accident.
In the case of Vasquez-Santos v. Matthew, the issue at hand involves the inability of Vasquez-Santos to continue his semi-pro basketball career after being involved in an August 2013 motor vehicle accident with defendant Leena Matthew on the Palisades Parkway. After Vasquez-Santos filed his personal injury lawsuit in Manhattan, photos surfaced on social media of him playing basketball. However, while he claimed the photos were taken a year before the accident, counsel for the defendant asked to be granted access to metadata associated with the photos. However, when this request was refused by attorneys for Facebook, the defendant’s attorneys then filed a motion seeking permission for a third-party data miner to examine the plaintiff’s electronic devices. But once that request was denied, citing irrelevance to the case and that the jury should be given the opportunity to decide if the photos were taken before or after the accident, an appeal was filed.
Once filed, the First Department five-judge panel reversed the rulings of earlier courts regarding defendant access to social media accounts and electronic devices, stating instead that based on current technology that is now available, the uncertainty of these cases should be removed if at all possible. Rather than leave juries to wonder if photos were taken before or after an accident, the panel stated technology can now provide better answers to these and other related questions. However, with additional appeals expected regarding this latest ruling, the issue could be debated in courts for a number of years.
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