With social media and eDiscovery it is common to explore the photos a custodian posts and different comments, geotags and meta data involved but one area not as covered is photos where the custodian is tagged in.

In Vasquez-Santos v. Mathew, 8210NIndex 158793/13 (N.Y. App. Div. Jan. 24, 2019), the New York Appellate Division, First Department panel “unanimously reversed” an order by the Supreme Court, New York County last June that denied the defendant’s motion to compel access by a third-party data mining company to plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of plaintiff engaging in physical activities and granted the defendant’s motion.

The courts stated ““Private social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims’ (Patterson v. Turner Const. Co., 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ). ” Specifically for tagged photos the court said “That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. ” when talking about the custodian in question.

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