On January 24, 2019, the New York Appellate Division held in Vasquez-Santos v. Mathew that the defendant may utilize the services of a "data mining" company for a widespread search of the plaintiff's devices, email accounts, and social media accounts.

Vasquez-Santos is an extension of the recent NY Court of Appeals decision, Forman v. Henkin holding that a user's "private" Facebook messages and photos are subject to disclosure where that information is "reasonably calculated to contain evidence material and necessary to the litigation."

Plaintiff Vasquez-Santos used to play semi-professional basketball and alleged that his athletic career came to an end following a motor vehicle accident. Plaintiff claimed Facebook photos posted after the accident depicting him continuing to play basketball were taken before his accident. To rebut Plaintiff's claims, Defendant sought production of the metadata associated with the photos, potentially showing the date and time the photos were taken, with the assistance of a data mining company. The trial court denied Defendant's motion for such discovery which was unanimously reversed. 

Now, not only may a defendant seek social media discovery within the guidelines set forth in Forman v. Henkin (below), a defendant may utilize a data mining company to search for plaintiff's social media accounts.

In Forman v. Henkin, the plaintiff sued a horse owner following an equestrian accident she alleged caused cognitive deficits, including difficulties communicating, and social isolation. The plaintiff testified that pre-accident, she often documented her life on Facebook. In seeking disclosure of the plaintiff's "private" content, the defendant argued that based on her pre-accident usage, the plaintiff's post-accident Facebook account could contain evidence relevant to the credibility of her injury claims. 

The trial court partly granted the defendant's motion to compel, and the Court of Appeals agreed, ordering (with certain limitations) that plaintiff must disclose all post-accident "private" photos and the time and word-count information for post-accident "private" messages. The Court of Appeals held that this private content discovery was reasonably calculated to yield evidence relevant to the plaintiff's assertion that she no longer engaged in activities she enjoyed before the accident, had become reclusive, and struggled to use a computer and compose coherent messages. 

The discovery requested must consider the following: (i) the nature of the event causing the litigation and the injuries claimed to assess whether relevant material is likely to be found on the Facebook account; (ii)  the potential utility of the information sought against any specific "privacy" or other concerns; and (iii) must be to avoid disclosure of irrelevant material.