Those of us attending a sporting event or concert recently have probably observed a troubling trend. So many of the younger people in attendance, who we now call millennials, are more interested in filming the event with their phone than simply watching and enjoying it. After our view of the proceedings is severely diminished, the films and photos are posted on social media, such as Facebook, and shared with the world. If attendance at the event is not somehow documented on social media, it’s as if they did not witness it.
Back in the dark ages of the 1990s, before the technology boom, defendants frequently conducted videotape surveillance in the hopes of catching plaintiffs on film engaged in robust activity. As recently as 2003, the Court of Appeals observed that “[i]n the world of personal injury litigation, defendants will sometimes conduct videotaped surveillance seeking to verify the extent of plaintiffs’ injuries or to establish that plaintiffs have feigned or exaggerated them.” Tran v. New Rochelle Hosp., 99 N.Y.2d 383, 385 (2003). These days, surveillance videographers are short on work and have gone the way of the Maytag repairman (millennials can look that one up on YouTube!). Their services are now rarely required because plaintiffs perform their own surveillance, carefully documenting and recording their lives, and then posting it all on social networking sites, complete with editorial comments.
In personal injury litigation, social networking sites often contain a treasure trove of relevant information and dozens of reported decisions have addressed disclosure disputes involving the production of such material, with most focused on disclosure of Facebook postings. See David D. Siegel & Patrick M. Connors, New York Practice §344 (6th ed. 2018). Last month, the Court of Appeals had its first opportunity to address the disclosure of materials posted on a plaintiff’s Facebook page in Forman v. Henkin, 30 N.Y.3d 656 (2018).
In Forman, plaintiff fell from defendant’s horse and claimed numerous injuries including “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.” During a deposition, plaintiff admitted that she previously had a Facebook account where she posted “a lot” of photographs of her active lifestyle before the accident, but stated she could not remember if she posted any photos thereafter. She also stated that she deactivated the account six months after the accident.
Defendant then sought an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, arguing that the photographs and writings posted there satisfied the relevance standard under CPLR 3101(a). When plaintiff failed to provide the authorization, defendant moved under CPLR 3124 to compel plaintiff to comply with the request. Defendant contended that plaintiff’s Facebook postings were relevant to her claims that she could no longer cook, travel, engage in sports such as horseback riding, attend the movies or the theater, or go boating, and that the fall also diminished her “ability to read, write, word-find, reason and use a computer.”
Although social media is a 21st century phenomenon, the court addressed the problem by applying New York’s “well-established” disclosure rules under CPLR Article 31, which is now in the sixth decade of its reign. While CPLR 3101(a) requires disclosure of “all matter material and necessary to the prosecution or defense of an action,” in 1968 the court liberally interpreted “material and necessary” to include anything that is “relevant.” See Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 407 (1968).
As the Forman court notes, CPLR 3101 grants certain categories of relevant information an immunity from disclosure. CPLR 3101(b) grants absolute immunity to any information that is protected by any of the recognized evidentiary privileges, while CPLR 3101(c) grants a similar immunity to the “work product of an attorney,” which has been accorded a very narrow scope by the courts. See Siegel & Connors, New York Practice §§346-47. CPLR 3101(d)(2) grants a conditional immunity to “materials … prepared in anticipation of litigation,” commonly known as work product. See id. §348. These limitations are, however, narrowly construed to promote New York’s policy of affording liberal discovery. See, e.g., Ambac Assurance v. Countrywide Home Loans, 27 N.Y.3d 616, 624 (2016).
With that backdrop, one may wonder what all of the fuss in this area was about. In a case like Forman, where plaintiff’s claimed injuries were so extensive, the defendant should be able to establish with relative ease that postings on Facebook depicting plaintiff’s lifestyle both before and after the accident are relevant under CPLR 3101(a). Moreover, such materials are not covered by any of the three categories of immunity listed above. The postings are not within any recognized evidentiary privilege, CPLR 3101(b), do not constitute the work product of an attorney, CPLR 3101(c), and certainly do not constitute material prepared in anticipation of litigation, CPLR 3101(d)(2).
Yet, an unfortunate precedent developed in this area where a party posted information on what is called a “private” site, which can only be accessed by those who have been granted “friend” status by the holder of the social media account. See McKinney’s CPLR 3101 Practice Commentaries C3101:50 (“Disclosure of Films, Photographs, Tapes, Etc.”) (tracking the extensive case law in this area during the last decade). Alas, in all of the reported decisions, the plaintiff and defendant were not “friends” and that access required some cooperation by the account holder, which was not forthcoming. (The third parties who operate the social networking sites, such as Facebook, can be notoriously uncooperative in providing information without the consent of the account holder).
Many courts faced with motions to compel the production of materials posted by a plaintiff on a private social media site required the seeking party to demonstrate that information on the site contradicted the plaintiff’s claims. See, e.g., Kregg v. Maldonado, 98 A.D.3d 1289, 1290 (4th Dep’t 2012). This hurdle could be satisfied if there was material on a “public” portion of the plaintiff’s site, which could be accessed by most anyone, that conflicted with the alleged injuries. If so, the courts deemed it likely that the private portion of the site contained similarly relevant information. See Romano v. Steelcase, 30 Misc. 3d 426, 430 (Sup. Ct., Suffolk County 2010). If, however, the defendant simply claimed that information on plaintiff’s private social media site “may” contradict the alleged injuries, the disclosure request was deemed a mere “fishing expedition” and the motion was denied. See, e.g., Tapp v. New York State Urban Dev., 102 A.D.3d 620 (1st Dep’t 2013).
The major obstacle confronted by many defendants was that the plaintiff might not have had a public site, or had only minimal postings on the public site, such as in Forman where the plaintiff’s public site contained only a single photograph that did not contradict plaintiff’s claims or deposition testimony. Furthermore, the entire social media site might have been deactivated, as the plaintiff in Forman had done six months after the accident. That often provided the defendant with scant information to establish that materials on a private social media site should be disclosed.
The plaintiff sought to invoke the above precedent in Forman, but the Court of Appeals rejected the argument, noting that it permits a party to “unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.” Moreover, the court noted that “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.” In sum, the standard for obtaining disclosure remains one of relevance, regardless of whether the material is in a traditional print form or posted in an electronic format on a “private” Facebook page.
The court also expressly rejected the notion that a social media account holder’s privacy settings somehow govern the scope of disclosure. In this regard, it’s helpful to make comparisons to disclosure requests for printed materials, with the personal diary being the most closely analogous hard copy version of a private social networking site. Courts have allowed disclosure of relevant materials in a personal diary notwithstanding any privacy concerns. See Faragiano v. Town of Concord, 294 A.D.2d 893 (4th Dep’t 2002). Why shouldn’t the same result apply to disclosure of postings on a private social media site, where the material is more broadly distributed to others?
The court also cautioned that broad and unlimited disclosure requests for information on social media sites, such as defendant’s in Forman, are inappropriate. This has long been the case in the world of paper, where New York practice differs from that in the federal courts. See Siegel & Connors, New York Practice §362 (noting that blunderbuss demands for documents using broad and general descriptions, especially when they require the production of massive quantities of papers or other items, are generally not enforced by the courts). In this regard, even if none of the three categories of statutory immunity under CPLR 3101 apply, the plaintiff can still seek to limit the scope of disclosure through CPLR 3103’s protective order powers. As the Forman court noted, a social media account holder, like any party to litigation, can seek to prevent the disclosure of sensitive or embarrassing material of minimal relevance through a motion under CPLR 3103(a). In Forman, for example, the supreme court exempted from disclosure any photographs of plaintiff on the Facebook site depicting nudity or romantic encounters. (Just how “private” was this site?).
With the Forman decision on the books, disclosure of materials on social media websites should be easier to obtain. CPLR 3101(i), which expressly allows disclosure of any picture, film or audiotape of a party, is another tool that can be used to secure materials posted on a social media site. The court declined to address this subdivision in Forman because neither party cited it to the supreme court and, therefore, it was unpreserved. It should be noted, however, that the Court of Appeals previously observed that CPLR 3101(i) does not contain any limitation as to relevancy or subject matter, although a party is still free to seek a protective order to restrict disclosure under the subdivision. See Tran, 99 N.Y.2d at 388 n.2.
Moving forward, lawyers might consider requesting that their clients deactivate a social media site, as the plaintiff did in Forman, or remove certain postings from the site. Is such conduct ethical? In New York County Lawyers Association Ethics Opinion 745 (2013), the ethics committee concluded, among other things, that a lawyer is permitted to advise a client to use the highest level of privacy settings available on a social media site to prevent others, such as adverse counsel, from having direct access to the contents of the site. From an ethics standpoint, an attorney is permitted to advise a client to remove postings from a social media site, but cannot advise the client to destroy such information. In this regard, Rule 3.4 (a)(1) of the New York Rules of Professional Conduct provides that a lawyer “shall not suppress any evidence that the lawyer or the client has a legal obligation to reveal or produce.” Furthermore, under Rule 3.4 (a)(3), a lawyer may not “conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.”
While not addressed in Forman, lawyers advising clients regarding the contents of a social media site must be aware of potential disclosure obligations and the duty of preservation, which begins at the moment litigation is reasonably anticipated. See VOOM HD Holdings v. EchoStar Satellite, 93 A.D.3d 33 (1st Dep’t 2012); Siegel & Connors, New York Practice §§362, 367 (discussing litigation holds and penalties for spoliation); McKinney’s CPLR 3126 Practice Commentaries, C3126:8A (“Sanction for Spoliation of Evidence”). Once litigation is reasonably anticipated, anything of potential relevance that is removed from a site must be preserved so a party can comply with any future obligations to produce the materials in disclosure.
We look forward to future decisions addressing these matters and the next social media platform, which will undoubtedly arrive shortly.
Patrick M. Connors is the Albert and Angela Farone Distinguished Professor in New York Civil Practice at Albany Law School. He is the author of Siegel & Connors, New York Practice (6th ed. 2018), which was released this month.