In a fascinating decision that was recently handed down by an upstate New York trial court (and reported on in today's edition of the New York Law Journal), the defendants in a personal injury action arising out of a car accident asked the Court to issue an Order compelling the plaintiff to give them unrestricted access to her Facebook account.


Your visceral, gut reaction is probably something along the lines of "Why on earth would they ask for that, let alone be entitled to it?"


The truth is, however, the request is not as absurd as you might think. In this case, the plaintiff claimed that she had suffered diminution of cognitive function as a result of the accident. Consequently, the defendant framed the reasoning for their request for access to the plaintiff's Facebook account as follows:


"[T]he layout of her Facebook page would demonstrate cognitive function inasmuch as the layout of a Facebook page calls for creativity of some sort as well as thought in providing captions for photographs, narrative posts written by the plaintiff as well as well as her ability to write and comment. Writings on the page would be direct and circumstantial evidence of her claims. Moreover, lucid and logical writing or a lack thereof, would be useful in the defense and/or assessment of this case."


After conceding that there was relatively little in the way of precedential case law on the subject, the Court quoted from a Federal court opinion stating:


"[T]he contours of social communications relevant to "Plaintiff's cognitive functioning are hard to define but do not justify the blanket disclosure that Defendants request. "[I]t must be the substance of the communication that determines relevance."

Following that train of thought, the trial Court then continued as follows:

"For example, if Plaintiff posted a message on Facebook saying that she has difficulty formulating the words to express her thoughts, the substance of the message is what should be considered to determine whether the message is relevant. Beyond that, once Plaintiff formulates a message, the message itself may not reflect the effort expended in its formulation if the substance of the message does not contain any reference to that process. Even Plaintiff's use of language and her ideas may be more reflective of her choice of expression rather than her ability. Furthermore, as Plaintiff contends, to the extent that she has provided more reliable indicators of her cognitive abilities, Defendants have made no showing that their request is not cumulative."


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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