In a blow to personal injury plaintiffs, a state appeals court in Manhattan ruled that a defendant's data mining expert may scour a plaintiff's electronic devices and email and social media accounts for evidence of physical activity following a motor vehicle accident.

The ruling by the Appellate Division, First Department, came on the New York Court of Appeals' decision last year to give a defendant access to materials from a plaintiff's Facebook account that had been deemed private as part of discovery in a personal injury suit in which the plaintiff alleged that she was injured after she fell from the defendant's horse.

In a signed decision in Forman v. Henkin, handed down in last February, Chief Judge Janet DiFiore wrote for a unanimous court that limiting discovery to a litigant's public posts on Facebook runs counter to New York's tradition of liberal discovery.

With a brief, two-paragraph ruling issued on Thursday in Vasquez-Santos v. Matthew, a five-judge panel from the First Department pushed the envelope even further for defendants and granted a motion to compel to allow an expert to cast a wider dragnet through the plaintiff's electronic devices, including through email accounts and other social media platforms such as Twitter and WhatsApp, and for deleted materials, tags and documents.

Kenneth Pinczower of McDonald & Safranek, which works as house counsel for Nationwide Insurance, said that the First Department's ruling will have a “major impact” for discovery in personal injury cases, in which juries are often left to make judgment calls on the credibility of the parties in the case.  

“With the use of technology, we can now recapture and obtain photographs, videos, emails, texts and social media postings created by the plaintiffs themselves that contradict their current claims of injury and challenge their current claim as to how the incident occurred,” Pinczower said. “This is a very powerful tool that can and should be used by counsel to challenge the credibility of the plaintiff and will help the jury determine the truth.”  

Howard Cohen of William Schweitzer & Associates, which represents plaintiff Genaro Vasquez-Santos, did not respond to a request for comment.

Vasquez-Santos used to play semi-professional basketball but he alleges that he became disabled and had to give up playing after a August 2013 motor vehicle accident in which his vehicle collided with one being driven by defendant Leena Matthew on the Palisades Parkway in Rockland County.

Vasquez-Santos filed suit in Manhattan and, following the accident, photographs depicting Vasquez-Santos playing basketball were posted to social media, which Matthew's counsel obtained.

Vasquez-Santos claims that the photos are from a year before the accident, Pinczower said. Pinczower filed a motion to compel production of the metadata associated with the photos; a motion to obtain the metadata from Facebook, which is not a party to the case, was refused by Facebook's counsel.

The attorney then moved to allow a third-party data miner to search through Vasquez-Santos' devices, but Manhattan Supreme Court Justice Adam Silvera denied the motion, finding that Matthew was trying to get access to electronic devices that were irrelevant to Vasquez-Santos' injury.

The judge said that Matthew already had copies of photographs of Vasquez-Santos engaged in physical activity and that it should be up to jury to decide if they were taken before or after the accident.  

But, in its order reversing Silvera, a First Department panel comprised of Justices John Sweeny Jr., Peter Tom, Marcy Kahn, Jeffrey Oing and Anil Singh said that Matthew is entitled to discovery to rebut the plaintiff's claims that the photos were taken before the accident.

Read more:

Court of Appeals Declares Facebook 'Private Data' and Other Social Media Subject to Discovery

NY Top Court: Private Facebook Postings Not Off Limits in Discovery