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On February 13, 2018, a unanimous panel of the Court of Appeals held that a discovery request for certain photographs and other information contained in the “private” section of a plaintiff’s Facebook account is subject to the same standard as any other discovery request; i.e. whether the requested discovery is material and necessary to the defense of the action. Since the defendant’s request in that case met this standard, he was entitled to this discovery.
In Forman v. Henkin, the plaintiff allegedly was injured when she fell from defendant’s horse. She claimed, among other things, neurological injuries, cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. At her deposition she stated that she had posted numerous photographs on Facebook pre-incident showing her formerly active life, but that she had deactivated the account approximately six months after the accident. Plaintiff also claimed that as a result of this accident she had become reclusive, and had difficulty using a computer and composing coherent messages. Based on this testimony, defendant moved to compel the production of plaintiff’s entire Facebook account.
In opposition, plaintiff argued that defendant failed to establish a basis for access to the “private” portion of her account because the “public” portion contained only a single photograph that did not contradict her claims or deposition testimony. Notably, there was no claim by plaintiff’s counsel that she had reviewed the account, nor that any specific material located therein, although potentially relevant, was privileged or should be shielded from disclosure on privacy grounds.
The Supreme Court directed plaintiff to produce all photographs of herself privately posted on Facebook that she intended to produce at trial, all photographs of herself privately posted on Facebook after the accident that did not depict nudity or romantic encounters, and an authorization for Facebook records showing each time she posted a private message after the accident and the numbers of characters or words in the message. Supreme Court did not, however, order disclosure of the content of any of plaintiff’s written Facebook posts, whether authored before or after the accident.
Plaintiff appealed to the First Department, which modified the order by limiting disclosure to photographs that plaintiff intended to produce at trial, and eliminating the authorization permitting defendant to obtain data relating to post-accident messaging. Defendant then appealed to the Court of Appeals.
Although this was the first opportunity for the Court of Appeals to address the discoverability of social media material, that Court noted that every discovery dispute starts with the same premise regardless of the request: items are discoverable if they are material and necessary to the prosecution or defense of an action. As with all other discovery requests, courts are to consider the nature of the events giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to determine whether relevant material is likely to be found on the Facebook account. Moreover, the potential utility of the information sought should be balanced against any specific privacy or other concerns raised by the account holders. Also, to the extent that the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court.
After considering of all of these factors, the Court of Appeals found that given “plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook,” there was a basis to infer that photographs she posted after the accident might be reflective of her post accident activities and/or limitations. Moreover, it was reasonably likely that data revealing the timing and number of characters in posted messages “would be relevant to plaintiff’s claims that she suffered cognitive injuries that cause her to have difficulty writing and using the computer.” Thus, the Court of Appeals reversed the First Department and reinstated the Supreme Court’s Order directing this disclosure.
Notably, the Court of Appeals rejected plaintiff’s argument that discovery of material on the private portion of a Facebook page requires a demonstration that the material in the public portion tended to contradict the injured plaintiff’s allegations. On the other hand, it also agreed with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable.
This decision opens up another potential avenue to obtain discovery in medical malpractice and general liability actions, particularly with regard to a plaintiff’s claimed injuries. Going forward, defense counsel should question plaintiffs and their family members about their use of social media, and follow up with a request for authorizations. It should be noted, however, that there were procedural issues with the manner in which Forman was handled in the Supreme Court that limited the Court of Appeals review, and that left certain issues open. Since the defendant did not appeal from the Supreme Court Order which denied much of his original request, review by the Court of Appeals was limited to reinstating the discovery allowed by the Supreme Court’s Order. As a result it is possible that the Court of Appeals will reach these issues again, at which point it may allow even greater discovery into social media material.
Questions? Contact Barbara Goldberg at (212) 916-0980 or Gregory Cascino at (516) 712-3146
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