By James E. Kimmel, Esq.

In an important decision on the discoverability of information posted to social media the Appellate Division, First Department, reversed a lower court order directing production of certain information from a Facebook account. However, a dissent may portend a future re-examination of the Court’s decisions in this area.

In Forman v. Henkin, __ A.D.3d __, 2015 NY Slip Op 09350 (1st Dep’t December 17, 2015), the plaintiff alleges she was injured at the defendant’s home in Westhampton while riding one of the defendant’s horses, sustaining bodily injuries that include traumatic brain injury and cognitive deficits. At her deposition, plaintiff testified that she maintained a Facebook account prior to the accident but deactivated the account after the lawsuit was commenced. Plaintiff also testified that the accident resulted in her social isolation and that her “social network went from huge to nothing.”

Defense counsel moved for an order compelling the plaintiff to provide an authorization granting them access to the plaintiff’s Facebook account, including all photographs, status updates and instant messages. The trial court granted defendant’s motion and directed plaintiff’s counsel to produce: (a) all photographs posted prior to the accident that she intends to introduce at trial; (b) all photographs posted after the accident (excepting those depicting nudity or romantic encounters) and (c) an authorization for records of private messages posted after the accident. In a 4 to 1 decision, the appellate court reversed, as to (b) and (c).

The majority’s decision rested on the fundamental test for determining whether evidence is discoverable: that the information sought must be useful and within reason and that the discovery sought is reasonably calculated to lead to the discovery of information bearing on the claims. The Court reviewed an existing body of related case law, including Pecile v. Titan Capital, 113 A.D.3d 526 (1st Dep’t 2014) and Tapp v. New York State Urban Development, 102 A.D.3d 620 (1st Dep’t 2013), in which it held that a defendant seeking disclosure must demonstrate some item from the plaintiff’s publicly available social media postings that conflicts with the claims in the case.

The Court held that the defendant’s demands for the Facebook posts were “speculations” and essentially a “fishing expedition.” The Court found that plaintiff’s use of Facebook before the accident is an insufficient reason to conclude that post-accident posts might be relevant to rebut the plaintiff’s allegations of injuries and disabilities. The majority opinion drew a distinction between surveillance of a plaintiff in public places and “the wholesale discovery of private social media information.”

In a lengthy dissenting opinion, Justice Saxe argued against rigidly adhering to the previous case law that requires a factual predicate for the social media disclosure. The dissent contends that a demand for social media posts, limited to reasonably calculated categories of items and relevant to the issues raised in the case should be valid and would be consistent with the “full disclosure of all matter material and necessary in the prosecution or defense of an action” language contained in New York CPLR 3101(a).

Forman v. Henkin can be seen as protective of the information that people voluntarily place on the internet. Courts still seem to struggle to keep pace with the unceasing advancements in technology. The Forman v. Henkin decision does not, for example, address a practical reality of social media, that photos and screen shots posted to private or “locked” accounts can nonetheless be archived by google and other search engines which cull, index and archive all web content, regardless of the user’s privacy intentions.

If you have questions about disclosure in civil litigation of information placed on social media, contact James E. Kimmel or Glenn A. Jacobson.