Over the past year there have been several appellate decisions addressing the scope of discovery that may have significance for all litigants in personal injury and medical malpractice actions. While these decisions address a broad range of issues, there is an overriding theme involving the impact of advances in technology on discovery.

Social Media Discovery

In Forman v. Henkin, 30 N.Y.3d 656 (2018), for example, the Court of Appeals addressed the scope of discovery from an injured plaintiff’s social media platforms. The plaintiff in that personal injury action alleged that she suffered spinal and traumatic brain injuries that caused cognitive deficits. She testified that she deactivated her Facebook account six months after the accident, and that as a result of her injuries she had become reclusive, had difficulty using a computer, and that a simple email could take hours to write. The defendant sought an authorization to obtain the entire private portion of her Facebook account—that portion of the account accessible only to a member’s Facebook “friends,” as distinguished from the public portion of the account, which is accessible to anyone who does an Internet search. The defendant argued that the private portion of the account may have material pertinent to the plaintiff’s claim that she was no longer able to engage many activities and to how long it took her to type emails.

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