Robert S. Kelner and Gail S. Kelner

Social networking websites have become part of the communication mainstream and generate a plethora of personal data. Certain sites allow open access by the public while others, such as Facebook, provide not only public pages, but also private pages with access restricted only to invited individuals. Over the last number of years, these sites have increasingly become a target of discovery demands in personal injury actions, compelling the courts to fashion procedures to determine the extent to which information on private pages must be disclosed. Recognizing that private pages may contain very personal information, the courts began to generate a body of case law, addressing the peculiar and expansive nature of these sites. Many of the decisions fashioned procedures for social media materials that departed somewhat from those applied to more traditional sources of personal information.

The approach to discovery of social media materials was recently addressed by the Court of Appeals in Forman v. Henkin, 30 N.Y.3d 656 (2018). In this decision, the court rejected the existing case law which held that discovery of social media data should be subject to special rules. Instead, the court found that it should be governed by the same principles and procedures as those governing traditional discovery. Significantly however, as with any other discovery request, a demand for private Facebook materials must be narrowly tailored to the facts and issues in the case.

CPLR §3101 provides in pertinent part that:

There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof…

Precedent

Prior to Forman, the developed case law with respect to discovery of social media accounts largely required a defendant to lay a factual predicate for the relevancy of the evidence being demanded. For example, in Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, 620 (1st Dept. 2013) the court found that to warrant such 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.” Such a heightened threshold for production of social media records often required in camera inspection of such records by the motion courts. See, e.g., Kregg v. Maldanado Maldonado, 98 A.D.3d 1289 (4th Dept. 2012).

Some courts conditioned discovery of material from the “private” portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party’s allegations in some respect. For example, in Spearin v. Linmar, 129 A.D.3d 528 (1st Dept. 2015), defendant established a factual predicate for discovery of relevant information from private portions of plaintiff’s Facebook account by submitting a photograph from plaintiff’s public profile showing plaintiff sitting in front of a piano. This contradicted plaintiff’s testimony that, as a result of getting hit on the head by a piece of falling wood, he could longer play the piano. So too, in Richards v. Hertz, 100 A.D.3d 728 (2d Dept. 2012), a photograph of plaintiff on a Facebook public page was used to show the relevancy of a demand for certain materials on plaintiff’s private page. See Patterson v. Turner Constr., 88 A.D.3d 617, 618 (2011); cf. Abrams v. Pecile, 83 A.D.3d 527, 528 (2011); McCann v. Harleysville Ins., 78 A.D.3d 1524, 1525 (2010). The trial court was also directed to conduct an in camera inspection of other materials to determine which of those materials, if any, were relevant to plaintiff’s alleged injuries.

‘Forman’

Forman v. Henkin, 30 N.Y.3d 656(2018) came before the Court of Appeals against the backdrop of this developed body of case law. There were primarily two discovery demands preserved for appeal in Forman. One was a more traditional request for photographs and the other was very peculiarly a product of the Internet. Plaintiff was injured in a fall from a horse. She testified that, before she was injured, she posted photographs of herself engaging in various activities on Facebook. She claimed that her injuries prevented her from continuing to participate in those activities. At her deposition, she stated that she did not recall whether she had posted any photographs on Facebook since her injury. She further alleged that because of brain injuries caused by the accident, she had sustained cognitive impairment. She testified that since her injury, she was unable to compose emails and text messages.

The Motion Court

The Forman motion court (2014 WL 1162201 (Sup. Ct., N.Y County 2014) (Billings, J.)) rejected defendant’s demand for an unlimited authorization for plaintiff’s entire private Facebook records, but directed her to produce any pre-injury photographs from her private Facebook page that she intended to introduce at trial. With respect to post-injury postings, she was directed to provide to defendants any photographs of herself privately posted on Facebook after her injury that did not show nudity or romantic encounters.

Defendant further sought pre-injury and post-injury writings to ascertain the impact of plaintiff’s injury on her ability to reason, find words, write, and communicate effectively. The demand included copies of plaintiff’s private status messages and instant messages on her Facebook account. The motion court held that defendant was entitled to request plaintiff’s writings following her injury and for a limited period prior to her injury for comparison. The court recognized that her writing product, other than her private Facebook messages and perhaps a single psychological and single physical examination, might not fully reveal the frequency, speed, and volume of her writing. As such, plaintiff was directed to provide an authorization for defendant to obtain records from Facebook, showing each time plaintiff posted a private message after the accident and the number of characters or words in the text of each private message, from the date of her injury until she deactivated her Facebook account.

Appellate Division

The decision of the motion court was appealed to the Appellate Division, First Department. Forman v. Henkin, 134 A.D.3d 529 (1st Dept. 2015), rev’d, 30 N.Y.3d 656 (2018). In a divided decision (3-2), the majority recognized that, in addressing discovery of social media information, the developed case law provided that there be a threshold showing before allowing access to such accounts. The Appellate Division found that defendant failed to establish such entitlement. Plaintiff was only required to provide copies of photographs taken either before or after the accident that she intended to use at trial.

There was a lengthy dissent by Justice David Saxe, joined by Justice Rolando Acosta. Saxe summarized the current case law and expressed his disagreement with the existing criteria for disclosure of Facebook materials:

The case law that has emerged in this state in the last few years regarding discovery of information posted on personal social networking sites holds that a defendant will be permitted to seek discovery of the nonpublic information a plaintiff posted on social media, if, and only if, the defendant can first unearth some item from the plaintiff’s publicly available social media postings that tends to conflict with or contradict the plaintiff’s claims. Even if that hurdle is passed, then the trial court must conduct an in camera review of the materials posted by the plaintiff to ensure that the defendant is provided only with relevant materials. Forman, 134 A.D.3d. at 536

He contrasted this type of heightened scrutiny with the traditional discovery procedures in a personal injury action:

[G]enerally, in a personal injury action, a defendant may serve on a plaintiff a notice to produce tangible documents or other items in the plaintiff’s possession or control, describing the type of content that is relevant to the claimed event and injuries. Assuming that the demand is sufficiently tailored to the issues, and unless a claim of privilege is made, normally the plaintiff must then search through those items to locate any items that meet the demand, and provide those items. There is not usually a need for the trial court to sift through the contents of the plaintiff’s filing cabinets to determine which documents are relevant to the issues raised in the litigation. Id. at 540.

Justice Saxe opined that this traditional discovery process should also be applied to social media requests. He stated that such a discovery demand, like any other valid discovery demand, should be limited to “reasonably defined categories of items that are relevant to the issues raised.” Id. at 541. He continues that “Upon receipt of a suitably tailored demand, plaintiff’s obligation would be no different than that a demand for hard copies of documents in a filing cabinet. A search would be conducted and barring a legitimate privilege issue, the documents would be turned over or an authorization provided.” Id. at 541.

Saxe further opined that even if material is posted as “private,” it should not be shielded if it is relevant discovery. Even if disclosure of social media content might be embarrassing, he stated it would be the “inevitable result of alleging these sorts of injuries.” Based upon the two dissents, the case was appealed to the Court of Appeals.

Court of Appeals

The decision of the Court of Appeals adheres fairly closely to the reasoning of the dissenting justices in the Appellate Division. It establishes a clear framework for discovery of social media records. It rejects the concept of a heightened threshold for production of such materials and chooses instead to apply the accepted general principles governing disclosure to them. However, such forays into potentially sensitive material must be protected and require vigilance by counsel to prevent an unwarranted incursion into a plaintiff’s most private communications.

The Court of Appeals stated that disclosure under CPLR §3101(a) requires full disclosure of all matter “material and necessary” and that it is to be interpreted liberally. However, the test is one of “usefulness and reason” and a party seeking discovery must satisfy the threshold requirement that the request be reasonably calculated to yield information that is actually material and necessary. The court emphasized that the right to disclosure is further limited by three categories of protected material: privileged matter, attorney work product and trial preparation materials. The burden of establishing a right to protection remains on the party asserting it. The court stated that the need for discovery must be weighed against any special burden to be borne by the opposing party.

The court determined that the existing heightened threshold applied by the courts unduly restricted discovery because the material would have to be already accessible to obtain it and would depend upon what the account holder chose to post on the public portion of the account. It stated 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 requirement is that the request be “appropriately tailored and reasonably calculated to yield relevant information.” The purpose of discovery is to determine if material relevant to a claim or defense exists. The court recognized that most commonly, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. The court rejected any argument that an account holder’s “privacy” settings should govern the scope of disclosure of social media materials.

However, the court cautioned that commencement of a personal injury action does not render the entire Facebook account automatically accessible. In articulating guidelines, the court held the established rules could provide adequate protection against overly broad incursions into privacy:

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules—there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

The court addressed factors specific to personal injury actions:

In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.         

For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but rather whether they are reasonably calculated to contain relevant information. In resolving the issues specifically before it in Forman, the court determined that the motion court properly found that plaintiff should disclose the photographs and the timing and number of characters in posted messages. The disclosure of the content of the messages was not raised by defendants on appeal.

The practical upshot of the Forman decision is that the traditional rules governing most forms of discovery are applicable to plaintiffs’ social media accounts. It is no longer necessary for a defendant to lay a specific kind of foundation from the public portions of a plaintiff’s Facebook page to obtain any social media discovery. But that does not mean that defendants now have unfettered access to plaintiffs’ social media information. Unlike before, it is more likely that the portions of a Facebook account which are found discoverable will be more narrowly drawn. As the Court of Appeals made clear, the defendant’s demand must be appropriately tailored to the issues in the case, such as by time, subject matter, or, most likely, both. The defendant must also, as with any discovery instrument, demonstrate that its demand is reasonably calculated to lead to the discovery of relevant information. In short, a defendant’s boilerplate demand for a plaintiff’s full social media accounts is exceedingly unlikely to pass muster under Forman. Plaintiff’s counsel should carefully scrutinize demands to ensure they are appropriately tailored and object to overbroad demands for unlimited Facebook records.

Plaintiffs should also be counseled appropriately by their attorneys. They must be told that their private pages may be discoverable if the material, be it photographs, emails, videos or any other private communications, is found relevant to the litigation. They should not be under the impression that privacy settings will control the production of the contents.

Robert S. Kelner is senior partner at Kelner & Kelner. Gail S. Kelner is an attorney with the firm.