New York High Court Holds “Private” Facebook and Other Social Media Postings May Be Discoverable

The Court of Appeals of New York holds that even materials marked “private” by Facebook users are subject to discovery if they contain material relevant to the issues in controversy in the litigation. Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (Feb. 13, 2018). In Forman, New York’s highest court overruled an Appellate Division order which utilized a heightened threshold for production of the plaintiff’s social media records that depended on what plaintiff chose to share on the “public” portion of her Facebook account.

Most people are savvy enough to make their social media accounts private, thereby restricting access to any information that can be discovered about them. Prior case law required defense counsel to demonstrate a reason to request access to plaintiffs’ social media accounts, which was virtually impossible to do for an account marked as “private.” Such designations no longer control access in New York.

Facts

Plaintiff in Forman allegedly sustained injuries as a result of her fall from a horse owned by defendant. Specifically, she alleged that she suffered spinal and traumatic brain injuries and now suffers cognitive deficits, memory loss, difficulty with both written and oral communication and social isolation. At her deposition, plaintiff testified that she deactivated her Facebook account six months after the accident and could not remember whether she posted any photographs depicting her life after the accident. She testified that she can no longer participate in activities such as cooking, traveling, going to the movies and boating as a result of the fall. She also testified that she has difficulty using a computer and has difficulty writing coherent emails.

Defendant demanded that plaintiff provide an unlimited authorization allowing access to her entire Facebook account, which plaintiff refused to do. Defendant filed a motion to compel production of this authorization which plaintiff opposed, arguing that defendant failed to establish a basis for allowing access to plaintiff’s “private” account as her public Facebook account contained one photograph that did not contradict plaintiff’s allegations. The trial court granted defendant’s motion to the limited extent as follows: (1) plaintiff was to produce all privately posted photographs before the accident that she intends to produce at the time of trial; (2) plaintiff was to produce all privately posted photographs after the accident that do not depict nudity or romantic encounters; and (3) plaintiff was to provide an authorization for her Facebook account showing each time that plaintiff posted a private message after the accident as well as the number of characters or words in these postings. Plaintiff appealed to the Appellate Division, which eliminated the defendant’s ability to obtain post-accident messages and limited disclosure to photographs that plaintiff intended to introduce at the time of trial, and otherwise affirmed. Defendant then appealed to the Court of Appeals.

Analysis

CPLR 3101(a) states that there shall be full disclosure of all matter material and necessary to the prosecution or defense of a (civil) action, regardless of the burden of proof. The Court of Appeals focused on the terms “material and necessary” in issuing its decision that the party seeking discovery must satisfy a threshold requirement that the discovery sought is relevant and stated that the CPLR requires liberal discovery which in turn will encourage fair and effective resolution of disputes on their merits. The Court of Appeals held that based on this threshold inquiry, defense counsel’s demand for access to photographs that plaintiff posted to Facebook after her accident was reasonably calculated to provide relevant evidence, notably as to plaintiff’s allegations concerning the activities that she can no longer engage in as a result of the fall at issue.

The Court of Appeals helpfully made the analogy to the privacy of medical records and the fact that courts allow the waiver of the patient-physician privilege when a plaintiff affirmatively places a medical or physical condition into issue by commencing a lawsuit. The Court held that similarly, private social media postings can be subject to discovery if they are relevant, thereby dispensing with the notion that private social media postings are non-discoverable by virtue of their privacy, an argument that effectively allows a plaintiff to hide evidence of what they are in fact able to do despite their allegations to the contrary.

Forman is extremely helpful, as prior precedent required defense counsel to demonstrate that social media postings on a plaintiff’s public page contradicted plaintiff’s allegations in the lawsuit—thereby allowing plaintiffs to prevent disclosure by limiting what is visible on their public postings. The Court of Appeals rejected the notion that plaintiff’s so-called privacy settings govern the scope of disclosure of social media materials.

However, the Court of Appeals agreed with other courts that ruled against allowing discovery of a plaintiff’s entire social media account simply because they commenced a lawsuit. The Court held further that when faced with a dispute such as the one involved in Forman, courts should (1) consider the allegations made and the nature of the events involved in litigation in order to determine whether relevant material is likely to be found on plaintiff’s social media page; and (2) weigh the potential utility of the information sought with any privacy or other concerns raised by the plaintiff. The Court of Appeals held that the court should issue an order specifically tailored to the facts at issue with a directive as to what must be disclosed and what is protected as non-relevant to the facts in controversy. Finally, the Court of Appeals held that courts should also consider how far back to require disclosure of social media postings and that courts may consider whether the disclosure of sensitive or embarrassing postings that are only of marginal relevance may be withheld.

Learning Point: Social media postings on plaintiffs’ “private” pages are discoverable if they are relevant as the threshold inquiry as to whether or not these postings must be produced is whether the materials are reasonably calculated to contain relevant information, not whether the postings are private. Forman is an important win for the defense bar that will hopefully inform other jurisdictions around the country.