Fawcett v. Altieri

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NY: Supreme Court
38 Misc. 3d 1022
960 NYS 2d 592
2013 NY Slip Op 23010
January 11, 2013
This is an action to recover for personal injuries allegedly sustained by the plaintiff, John Fawcett, Jr., a high school student, during an altercation with the defendant, Nicholas Altieri, another high school student, at a tennis match at St. Joseph by-the-Sea High School in Staten Island, New York. The plaintiff sets forth causes of action against the defendants for assault, battery, negligence and loss of services. The plaintiff's bill of particulars states that he sustained an injury to his right eye. During the course of the litigation the defendants demanded "authorizations to permit the defendants to obtain full access to and copies of Plaintiff's current and historical records and/or information and photographs on Plaintiff's social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites." Defendants contend that the plaintiff's social media accounts are not publically viewable and they have been made private with no information available for public consumption. It is unclear when the plaintiff made his social media accounts private.
A survey of cases dealing with the production of social media accounts, in both the criminal and civil contexts, reveals a two prong analysis before courts compel the production of the contents of social media accounts. This inquiry requires a determination by the court as to whether the content contained on/in a social media account is "material and necessary"; and then a balancing test as to whether the production of this content would result in a violation of the account holder's privacy rights. The motion and cross motion made by the defendants to compel the production of John Fawcett, Jr.'s social media files is denied. The plaintiff's cross motion for a protective order is also denied.