In its opinion filed on April 26, 2017, the Supreme Court of the State of New York Appellate Division: Second Judicial Department (“New York Appellate Court”) held that the New York medical malpractice defendants would not be allowed to offer as evidence printouts of what they purported to be pages from the plaintiff’s Facebook account during the medical malpractice trial “unless those defendants produced the person who obtained those printouts for a deposition.”
During the plaintiff’s deposition taken during the discovery phase of his New York medical malpractice case, the defendants confronted the plaintiff with printouts of 13 pages that allegedly were from his Facebook account from 2010, in which he allegedly talked about going out to a bar, having a great workout, and crossing the Williamsburg Bridge three times. While the plaintiff acknowledged that he had a Facebook account in 2010, he denied that the printouts he was confronted with during his deposition were from his Facebook account and he further denied that he made the statements.
Eight days after his deposition, the plaintiff made a discovery request for information about the individual who obtained the printouts and sought to depose that person as a witness. The plaintiff subsequently moved to suppress the transcript of his deposition, arguing that the defendants willfully failed to disclose the printouts and failed to comply with discovery deadlines, and that they should therefore be precluded from offering at trial all evidence that was improperly withheld.
The New York Appellate Court held that the plaintiff did not make a clear showing that the defendants’ failure to timely comply with certain discovery demands was willful and contumacious such that the drastic remedy of striking their answer was warranted, but further held that the trial court improvidently exercised its discretion in denying that branch of the plaintiff’s motion which was to preclude the defendants from offering the printouts as evidence at trial unless the defendants produced the person who obtained the printouts for a deposition, because the plaintiff denied that the printouts were from his Facebook account and he had no other means to prove or disprove their authenticity.
Source Lantigua v. Goldstein, 2015-02473.
Most medical malpractice attorneys who represent victims of medical malpractice routinely advise their clients early during their representation that anything they may state on their social media at any time, including but not limited to Facebook, may be discovered during the medical malpractice litigation, and therefore they should not make any statements or post any photos or other media that may be interpreted as being harmful to their medical malpractice claims such as the extent of their injuries or the harm they suffered as a result of the alleged medical negligence.
If you or a loved one suffered serious injuries or other harms due to possible medical malpractice, you should promptly seek the advice of a medical malpractice attorney in your state who may agree to investigate your medical negligence claim for you and file a medical malpractice case on your behalf, if appropriate.
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