Defendant lawyer barred acess to personal injury plaintiff's facebook account

In a brief order last week, the Appellate Division, Fourth Department determined that Harleysville Insurance Company of New York is not entitled to access the Facebook account of Kara McCann, who is suing for injuries allegedly sustained in a car accident. "Defendant essentially sought permission to conduct 'a fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence," the court concluded in its unsigned opinion in McCann v. Harleysville Insurance Company of New York , The panel upheld a lower court ruling denying a defense motion to compel Ms. McCann to produce Facebook photos and provide her account information to the defense, even though defense counsel from Chelus, Herdzik, Speyer & Monte claimed the photos were relevant to the issue of how seriously she was injured.

Evan Brown of Hinshaw & Culbertson, who posted about the ruling at his Internet Cases blog, said the decision appears to be one of the first higher-court rulings to address social media discovery in a civil context. He also said that while it is significant that the panel refused to grant a defense request for civil discovery of Facebook posts, it is important not to read too much into the ruling, which addressed an apparently overly-broad discovery motion. "You can almost read between the lines of the ruling," said Mr. Brown, who was not involved in the case. "If a defendant is more measured in discovery requests, access will be granted."

Defense counsel Christopher Poole of Chelus Herdzik and plaintiffs lawyer Daniel Stillwell of Anspach Meeks Ellenberger did not return calls for comment