Post at Your Peril: Facebook Privacy Settings Don’t Protect Against Discoverability in New York

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On February 13, 2018, the Court of Appeals weighed in on an important issue relating to the discoverability of private social media content. In a unanimous decision, New York’s highest court reversed the First Department’s application of a heightened threshold for the production of social media records where the account holder has chosen to share posts on a private setting only.

In Forman v. Henkin, 2018 N.Y. Slip Op 01015, the plaintiff was injured in a fall from a horse owned by the defendant. She alleged spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. At her deposition, she testified that her Facebook account contained several photographs depicting  her pre-accident active lifestyle, but that she had deactivated the account six months after the accident and could not recall posting post-accident photos. Defendants filed a motion to compel production of an authorization to obtain the entire private content of the plaintiff’s Facebook account asserting that it was relevant to plaintiff’s injuries and credibility. The Supreme Court granted the motion to the limited extent of directing the plaintiff to produce all pre-accident photographs that she intended to introduce at trial and all photographs of herself privately posted after the accident that did not depict nudity or romantic encounters. The Supreme Court also directed the production of an authorization permitting release of Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages. The plaintiff had testified that following the accident her ability to use the computer and write coherent messages was compromised and that writing a simple email could take her hours.

The plaintiff appealed the decision and the First Department (with two justices dissenting) modified the order by limiting disclosure to pre-accident and post-accident photographs posted on Facebook that plaintiff intended to introduce at trial, and eliminated the requirement to provide an authorization to obtain other data. Leave to appeal was granted.

The Court of Appeals reiterated New York’s liberal discovery standard, stating that “[a] party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is “material and necessary” – i.e., relevant…” The Court went on to note that litigants are not without protection against an unnecessarily onerous application of that standard, that competing interests must be balanced, and that discovery disputes should be resolved on a case by case basis. The Court noted that although Facebook is a relatively new means of sharing information, “there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules…”

The Court questioned the clarity of the standard employed by the First Department and made reference to the Appellate Division’s prior decision in Tapp v. New York State Urban Dev. Corp. 102 A.D.3d 620 (1st Dep’t 2013) where the court had stated: “To 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’”. The Court of Appeals noted that several courts appear to have interpreted the First Department’s ruling it Tapp to mean that discovery of materials contained in the private portion of a Facebook account is conditioned on the existence of material in the public portion that tends to contradict the injured party’s allegations. The Court concluded that this approach was incorrect in that it dictates that disclosure turns on the extent to which information is already accessible and not, is it should, on whether it is material and necessary to the prosecution or defense of an action. The Court went on to state that the purpose of discovery is to determine if relevant material exists and it is impossible for a requesting party to demonstrate that items not produced contain material evidence. Accordingly, the Court concluded that Facebook privacy settings do not dictate the scope of discovery of social media materials.

The Court of Appeals also recognized, however, that the contents of Facebook accounts are not automatically discoverable in personal injury actions, and that requests should be tailored to relevant information. The Court of Appeals directed lower courts to (a) consider the nature of the event giving rise to the litigation and the injuries claimed to assess whether material found on Facebook may be relevant, and (b) balance the potential utility of the information against any specific privacy or other concerns. In doing so, lower courts should tailor an order that identifies the types of material to be disclosed while avoiding disclosure of non-relevant material. The Court also noted that temporal limitations may be appropriate as might limitations on the disclosure of sensitive or embarrassing materials of marginal relevance.

In reversing the First Department and reinstating the lower court’s ruling, the Court of Appeals pointed out several times that because only the plaintiff and not the defendant appealed the lower court’s decision, the scope of the appeal before it was limited, implying that it may have sanctioned broader access to the plaintiff’s Facebook account than the lower court had permitted.

In representing plaintiffs in personal injury actions, it is rare nowadays for clients not to have some form of social media presence. Even if a client is advised against posting on social media during the pendency of his or her case, prior posts may be relevant and discoverable, regardless of their privacy settings. Plaintiffs cannot delete relevant postings and may run the risk of facing a spoliation motion if they do. Rather than resisting all requests for the production of social media content, a better course of action for plaintiffs’ attorneys is to access the client’s Facebook and other social media accounts, review the content to determine relevance, and decide, as you would in relation to all other requested material, if it is relevant and if it should be produced in response to discovery demands.

The Court of Appeals did note in Forman that the plaintiff’s attorney had not affirmed that she had reviewed her client’s Facebook page.  As a matter of prudence, regardless of whether the material is ultimately discoverable, knowing the contents of your client’s social media accounts is invaluable. It helps to evaluate a case and properly prepare your client to testify. It can also reveal helpful information that bolsters claims where a client’s memory of certain events has faded. Further, voluntarily producing clearly relevant and responsive information from social media accounts will go a long way to convincing a judge to limit any further access demanded by defendants.

In light of the Court of Appeals’ decision in Forman one thing is clear: this issue is here to stay in personal injury actions, and requests for the production of social media content will fast become a routine demand from defendants to the extent it has not already.


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