Michael Rubin, special counsel in Goldberg Segalla’s Syracuse office, successfully obtained an order from a justice in the Supreme Court of New York, Cortland County to compel a plaintiff in a personal injury case to authorize Facebook and MySpace to disclose current and historical content from her account, including information marked as private. Such authorizations concerning social media are certainly not the norm, with only a small number of reported decisions to date addressing this particular issue in an evolving area of the law that directly touches upon privacy issues and what personal information of a plaintiff may be deemed fair game and discoverable to defense counsel.

The victory in this discovery dispute highlights the firm’s strength in general liability defense as well as its place at the forefront of emerging social media issues in the legal landscape, as reflected in the work of the firm’s Cyber Risk and Social Media Practice Group.

In this case, Olmsted v. Soler, et al., the plaintiff seeks to recover for injuries she allegedly sustained to her foot and ankle in 2007 following an alleged fall from a teeter-totter at a Central New York campground. In her lawsuit, the plaintiff testified under oath at a deposition that she sustained permanent injuries that prevent her from performing a number of activities, including hiking (even on level ground), snorkeling, and horseback riding. However, the court noted, in the publicly available portions of her Facebook and MySpace accounts, she stated on dates after the alleged incident that she enjoys off-trail winter hiking, horseback riding, and snorkeling, and that she shoveled snow during a significant snowstorm, among other activities. “The interests and activities identified by plaintiff are sufficiently inconsistent with her claimed injuries to warrant production of the requested information,” the court stated in its order, filed on March 19, 2013. Indeed, the order compels the plaintiff to provide to our team “executed authorizations directing Facebook and MySpace to deliver to the court for in camera inspection, copies of all information contained or stored in her accounts, including all content marked private, all content previously archived, and all content previously deleted (to the extent it still exists).”

For more information on the impact of this decision as well as critical developments regarding the implications of social media on business and the law, please contact:

• Michael Rubin
• Or another member of Goldberg Segalla’s Cyber Risk and Social Media Practice Group