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New York Court Of Appeals Rules On Appropriateness Of Discovery From “Private” Facebook Account

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  • Posted on: Feb 16 2018

The New York Court of Appeals rules that a litigant must produce information from her Facebook account notwithstanding her chosen “privacy” settings.  The plaintiff in Forman v. Henkin (February 13, 2018) was injured after falling from a horse owned by defendant and alleges she suffered “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.”  During the litigation, plaintiff revealed she was a frequent Facebook user, but deactivated her account within six months of her accident.  Plaintiff claims that, after her accident, she had “difficulty using a computer and composing coherent messages” and that her e-mails were riddled with grammatical and spelling errors and took too long to compose.

During discovery, defendant “sought an unlimited authorization to obtain plaintiff’s entire ‘private’ Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action under CPLR 3101(a).”  Defendant moved to compel disclosure when plaintiff refused to provide the requested authorization.

Plaintiff opposed the motion arguing that defendant failed to establish a basis to access the “private” portion of the Facebook account.  Defendant argued that the information sought would lead to relevant evidence – such as the amount of time it took plaintiff to write posts.

Supreme Court granted the motion and directed plaintiff to “produce all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the message.”  The content of any of plaintiff’s written Facebook posts, whether authored before or after the accident, were not directed to be produced.

The Court of Appeals pointed out several times that although defendant was denied some of the discovery it sought, only plaintiff appealed to the Appellate Division.  The Appellate Division modified Supreme Court’s decision by “limiting disclosure to photographs posted on Facebook that plaintiff intended to introduce at trial (whether pre- or post-accident) and eliminating the authorization permitting defendant to obtain data relating to post-accident messages, and otherwise affirmed.”

The Court of Appeals reversed the Appellate Division and reinstated Supreme Court’s Order.  In its opinion, the Court generally reiterated the liberal discovery rules that permit the disclosure of “material and necessary” information that “bear[s] on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.”  (Citations omitted.)  The Court also recognized that there are limitations to discovery and that when faced with “onerous” demands “competing interests must always be balanced; the need for discovery must always be weighed against any special burden to be borne by the opposing party.” (Citations omitted.)

The Court recognized that when faced with discovery disputes, discovery requests must be evaluated on a “case-by-case basis.” The Court of Appeals found that there is no reason to apply any different standard to the disclosure of social media materials and, thus, stated that “[w]hile Facebook-and sites like it-offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

Thus, the Court rejected the ruling of the First Department in Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620 (2013), that “[t]o warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account –that is, information that ‘contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.’” (Quoting Tapp, emphasis in original.) The Court also rejected Tapp’s progeny, relied upon by the plaintiff in Forman, which “conditioned discovery of material on the ‘private’ portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the ‘public’ portion that tended to contradict the injured party’s allegations in some respect.”  (Citations omitted.)

The Court agreed with defendant’s argument that the “Appellate Division erred in employing a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account.”  The rule employed by the Appellate Division would permit the account holder “to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.”

In applying the general concepts of disclosure to social media discovery, the Court stated:

New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information.  Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists.  In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence.  Thus, we reject the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials.

The Court, however, tempered its decision by rejecting the notion that “commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable”, holding that “[r]ather than applying a one-size-fits-all rule…, courts addressing disputes over the scope of social media discovery should employ our well-established rules – there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.”

When judicial intervention is necessary in cases involving social media discovery disputes, the Court instructed lower courts to: 1. consider the nature of the event giving rise to the litigation, the injury claimed and any other case specific information to assess whether relevant information is likely to be found on Facebook; and, 2. “balanc[e] the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder… [by] tailor[ing an order] to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.”  In issuing such a ruling, the Court recognized that “private” materials, such as medical records, are discoverable in litigation if relevant.

Among other things, the Court found that Supreme Court’s order was consistent with the principals espoused in Forman because, for example: 1. the request for photographs was “reasonably calculated to yield evidence” related to plaintiff’s claim that she was unable to engage in previously enjoyed activities; and, the request for the data revealing the timing and number of characters in posted messages would be relevant to plaintiff’s claim cognitive injuries caused difficulty writing and using a computer.[1]

[1]  Because defendant did not appeal Supreme Court’s order, the Court of Appeals could not decide whether said order barring access to the content of the messages on plaintiff’s Facebook account (as opposed data revealing the timing and number of characters in posted messages) was appropriate.


[1]  Because defendant did not appeal Supreme Court’s order, the Court of Appeals could not decide whether said order barring access to the content of the messages on plaintiff’s Facebook account (as opposed data revealing the timing and number of characters in posted messages) was appropriate.

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