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Vasquez-Santos v. Matthew; The First Department Grants Defendant’s Motion to Compel Access To Plaintiff’s Devices, Social Media, and E-Mail Accounts

In Vasquez-Santos v. Matthew, the Plaintiff, a former semi-professional basketball player, claimed that as the result of an automobile accident he was rendered disabled and unable to play basketball. Discovery however revealed pictures of Plaintiff playing basketball that were either posted on social media or sent to his phone post-accident. Plaintiff, who did not post these pictures but was simply “tagged” in them, testified they were actually taken pre-accident. Defendant then moved to compel access to Plaintiff’s devices and e-mail and social media accounts by a third-party data mining company to search for photographs and other evidence of Plaintiff engaging in physical activities.

The Supreme Court denied the motion, however the First Department reversed. Citing the Court of Appeals’ February 2018 decision in Forman v. Henkin, which allowed access to photographs posted to that plaintiff’s private Facebook account post-incident, the First Department granted the requested access to Plaintiff’s accounts and devices. Notably, this access was limited in both time and scope to items posted or sent after the accident that discuss or depict Plaintiff engaging in basketball or similar physical activities.

Unlike Forman, which only addressed a defendant’s access to a plaintiff’s Facebook account, Vasquez also granted access to a plaintiff’s devices. This is significant because Facebook and other social media companies often refuse to provide responses even when a proper authorization is provided. Thus, this decision presents a useful avenue to actually obtain this discoverable and potentially relevant evidence.

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