In its recent opinion in Forman v. Henkin, the highest court in New York concluded that information posted on a user’s private Facebook profile is discoverable. The Forman decision follows the 2015 decision of the Florida Fourth District Court of Appeal in Nucci v. Target, which was one of the first state appellate courts to have addressed this issue.
In Forman, the plaintiff claimed that she was injured when she fell from a horse and suffered spinal and traumatic brain injuries resulting in in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. During her deposition, the plaintiff testified that prior to her accident, she led an active lifestyle involving horseback riding, boating, traveling, cooking, attending movies and theater, and that she often posted pictures of her activities on Facebook. She further testified that post-accident, she could no longer engage in those activities and that she had difficulty reading, writing and using a computer.
The defendant-owner of the horse sought to access the plaintiff’s entire private Facebook account, arguing that the photographs and postings on the account would yield information necessary to defend against the plaintiff’s claims. The New York trial court agreed in part and ordered the plaintiff produce all pre-accident photos of herself that she intended to use at trial, all post-accident photos of herself that do not depict nudity or romantic encounters, and an authorization for Facebook records showing every time she posted a message after the accident. The plaintiff appealed to the appellate division which limited the disclosure to only those photographs posted on Facebook that the plaintiff intended to introduce at trial.
On appeal to the highest court in New York, the Court of Appeals reversed and reinstated the trial court’s order granting broad discovery of the plaintiff’s private Facebook account and stated: “We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private. But even private materials may be subject to discovery if they are relevant.”
It is important to note that the Forman decision does not represent a departure from traditional discovery rules. As underscored by both the New York Forman decision and the Florida Nucci decision, social media discovery is no different than traditional paper discovery—it is governed by the same rules of civil procedure, which require the party advancing the discovery to demonstrate the relevance of the information sought. In other words, a party’s entire private Facebook account does not automatically become discoverable just because that party is involved in litigation. That said, we can all look forward to private social media profiles being sought as a commonplace discovery tool. So, let’s be careful out there!
Franklin Zemel is a partner and Ariel R. Deray is an associate with Saul Ewing Arnstein & Lehr in Fort Lauderdale. Zemel focuses his practice on appellate law, business law, civil rights litigation, securities, antitrust, complex commercial litigation, and labor and employment law. Deray’s practice focuses on complex commercial litigation.