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New York State’s Highest Court Considers Discovery of Private Facebook Materials


In Forman v. Henkin, the New York State Court of Appeals weighed in on the discoverability of private Facebook photos and messages

In the personal injury case of Forman v. Henkin, 30 N.Y.3d 656 (N.Y. Feb. 13, 2018), the Plaintiff alleged “that she was injured when she fell from a horse owned by defendant, suffering spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.” In deposition testimony, the Plaintiff indicated she used to be an active Facebook user who posted many photographs of her activities, but that she had “deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted.”

Defendant’s Request for Facebook Materials

Based on this testimony, the Defendant requested access to all of the private materials in the Plaintiff’s Facebook account, “contending the photographs and written postings would be material and necessary to his defense of the action” under the relevant New York State rules. The Plaintiff did not provide the requested access, and the Defendant moved to compel, “asserting that the Facebook material sought was relevant to the scope of plaintiff’s injuries and her credibility.”

The Plaintiff opposed this motion to compel and argued that the publicly available Facebook materials provided no factual predicate basis for allowing discovery of the private materials – a requirement applied in some early social media discovery cases (e.g., McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. Sept. 9, 2010), Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. C.P. May 19, 2011), and Largent v. Reed, 2011 WL 5632688 (Pa. C.P. Nov. 8, 2011)).

The trial court granted the Defendant’s motion to compel but applied some limitations in the interest of the Plaintiff’s privacy:

. . . 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 messages.

No disclosure of the written content in the messages was required.

Before the Appellate Division

The Plaintiff appealed to the Appellate Division, and that court modified the trial court’s order by further limiting the scope of what private materials the Plaintiff must produce to only those “photographs posted on Facebook that plaintiff intended to introduce at trial (whether pre- or post-accident)” and eliminating the requirement to produce data about post-accident messages.

The Defendant then appealed to the New York State Court of Appeals.

Before the New York State Court of Appeals

The Court of Appeals disagreed with the Appellate Division and the Plaintiff, and emphasized that social media sources are subject to the same rules as all others:

While 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. [emphasis added]

In rejecting the “heightened threshold” (requiring a factual predicate showing based on publicly available social media materials), for which the Plaintiff argued and which the Appellate Division seemed to impose, the Court of Appeals explained the unworkability of such a standard:

Before discovery has occurred – and unless the parties are already Facebook “friends” – the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account. Thus, a threshold rule requiring that party to “identify relevant information in [the] Facebook account” effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible — and not, as it should, on whether it is “material and necessary to the prosecution or defense of an action.” [emphasis added; internal footnote and citation omitted]

The Court of Appeals then reversed the ruling of the Appellate Division and reinstated the trial court’s order regarding the private Facebook materials:

In sum, the Appellate Division erred in concluding that defendant had not met his threshold burden of showing that the materials from plaintiff’s Facebook account that were ordered to be disclosed pursuant to Supreme Court’s order were reasonably calculated to contain evidence “material and necessary” to the litigation.

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