Defendant moves for an order, inter alia, precluding plaintiff from testifying or offering any medical evidence at trial upon his failure to provide discovery.

The within action is one for personal injuries allegedly sustained by plaintiff as a result of allegedly being knocked to the ground after being struck by a wood construction structure on December 1, 2010, while onsite as the Superintendent/Project Manager at a construction site in Long Island City, New York. Plaintiff commenced the action and discovery ensued. On May 4, 2012 and again on February 7, 2013, defendants served plaintiff with a Demand for Authorizations, seeking authorizations, including ones for several social media websites and blogs.

The parties entered into a stipulation at the Compliance Conference of this action on December 12, 2012, so-ordered by the Hon. Martin E. Ritholtz, which directed plaintiff to "provide authorizations for Facebook Profile/MySpace Profile" within twenty days. It further provided that defendants had reserved the right to in-camera inspection of the complete Facebook [*2]and MySpace accounts, upon a showing of relevance to injuries alleged. Plaintiff failed to timely provide a response.

Thereafter, defendants brought the within motion to preclude plaintiff from testifying or offering any medical evidence at trial upon his failure to provide discovery.^[FN1]

Plaintiff opposed the motion on the basis that their response to defendants' demand had crossed the motion in the mail, and that they had complied with all demands. In plaintiff's response, plaintiff objected to production of authorizations for plaintiff's Facebook and MySpace accounts, on the grounds such demands were overly broad and no showing had been made that such discovery would result in relevant evidence bearing on the claims. All other authorizations were provided, with the exception of one for Yin Tang Acupuncture, which plaintiff indicated would "be provided under separate cover." Accordingly, plaintiff is directed to provide a duly executed HIPPA compliant authorization for plaintiff's records from Yin Tang Acupuncture, within twenty (20) days of service of a copy of this order with notice of entry.

Defendants have submitted several photographs from the plaintiff's Facebook account (which are available for public view), which allegedly depict the plaintiff playing golf and traveling throughout the country. Other photographs posted on a hockey blog, refer to plaintiff's "hockey skills" and scoring ability. When questioned at his deposition whether he had played hockey or other sporting activities after the accident, plaintiff first testified that he had not. Upon being shown photographs allegedly taken subsequent to the accident which forms the basis of the within action, plaintiff's memory was refreshed and he testified that he had played hockey after the accident.

Defendants have demonstrated that the photographs contained in plaintiff's Facebook profile and hockey blog were probative of the issue of the extent of plaintiff's alleged injuries. It is therefore reasonable to believe that other portions of his Facebook account may contain further evidence relevant to the issue of plaintiff's injuries. Accordingly, with respect to plaintiff's Facebook profile, the defendants have made "a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information" bearing on his claim. See, Richards v. Hertz Corp., 100 AD3d 728 (2nd Dept. 2012).

Plaintiff is to provide this court for in camera inspection, all photographs depicting sporting activities posted on the demanded media sites. While these media accounts may also contain other items such as status reports, e-mails, and videos that are relevant to the extent of plaintiff's alleged injuries, due to the likely presence of material of a private nature that is not [*3]relevant to this action, this court shall conduct an in camera inspection of copies of all status reports, e-mails, photographs, and videos posted on plaintiff's media sites since the date of the subject accident, to determine which of those materials, if any, are relevant to his alleged injuries ( see Richards, id. at 730).

Accordingly, all parties are to contact the clerk of this Part to schedule a date to appear before this Court to conduct such an in camera inspection, and thereafter for a new determination as to whether and to what extent the defendant is entitled to the information.

June 19, 2013 ____________________

J.S.C.