by Glenn A. Jacobson, Esq & Barry Jacobs, Esq

The Court of Appeals provided guidance in its unanimous decision in Kelly Forman v. Mark Henkin, decided on February 13, 2018 that reversed the decision of a divided Appellate Division, First Department. Now, under Forman, plaintiff must produce (1) all photographs of herself posted on Facebook that she intends to use at trial; (2) all photographs of herself previously posted on Facebook after the accident that do not depict nudity or romantic encounters; and (3) an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages.

Proceedings at Supreme Court New York County

Plaintiff Kelly had fallen from a horse and alleged spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication and social isolation. At her deposition, plaintiff acknowledged she previously had a Facebook account on which she posted “a lot” of photographs depicting her pre-accident lifestyle. Plaintiff contended that she had become reclusive as a result of her injuries and had difficulty using a computer and composing coherent messages. She contended, in particular, that a simple e-mail could take hours to write because she had to go over the written material several times to make sure it made sense.

Defendant sought an “unlimited” authorization to obtain plaintiff’s entire private Facebook account, contending the photographs and written postings would be material and necessary to his defense. Defendant moved to compel a response, asserting that the Facebook materials sought was relevant to the scope of plaintiff’s injuries and her credibility. Plaintiff opposed the motion primarily on grounds of privacy. Significantly, plaintiff’s counsel did not state that he had reviewed the Facebook account nor did he allege that any specific material contained in the private account, while potentially relevant, was privileged or should be shielded from disclosure on privacy grounds.

The motion Court granted the defendant some but not all of the relief he was seeking. It ordered plaintiff to produce all photographs of herself posted on Facebook that she intended to produce at trial and photos of herself in her private account posted after the accident that did not depict nudity or romantic encounters. The Court also directed plaintiff to provide an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words used in the message.[1] Plaintiff was not directed to disclose the content of plaintiff’s written Facebook posts, whether authored before or after the accident.

Appellate Division, First Department

Plaintiff appealed and, on appeal, the Order of Disclosure by the lower court was further limited. In modifying the lower Court’s Order, the Appellate Division limited disclosure to photographs posted by plaintiff on Facebook that she intended to introduce at trial and eliminated the directive that plaintiff provide authorizations permitting defendant to obtain data relating to post-accident messages. However, two (2) Justices dissented, concluding that the defendant was entitled to broader access to plaintiff’s Facebook account and, in a more global statement, called for reconsideration of the First Department’s recent precedent addressing disclosure of social media information, which they considered unduly restrictive and inconsistent with New York’s policy of open discovery.

The Court of Appeals

Not fully satisfied with the result of her appeal to the Appellate Division, plaintiff appealed to the Court of Appeals.[2]

Plaintiff’s position was that the party seeking disclosure should be able to view only the materials that the account holder had published in the public portion of the account. Defendant argued that such a rule allowed the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the material on the public portion of the account. Defendant further argued that the Appellate Division erred in employing a heightened threshold for protection of social media records that depended on what the account holder had chosen to share on the public portion of the account. The Court of Appeals agreed with the defendant and rejected the notion that the account holder’s so-called “privacy” settings should govern disclosure of social media materials.

Rather, the Court held that there is no “one size fits all” rule. In addressing disputes over the scope of social media discovery, courts should employ certain well-established discovery rules. First – Is relevant material likely to be found in the Facebook account? Second – Balancing the potential utility of the information sought against “privacy” concerns raised by the account holder, the Court should issue an Order tailored to the particular controversy that identifies the type of materials to be disclosed while avoiding disclosure of non-relevant materials. Most importantly, the Court found that, for purposes of disclosure, “the threshold inquiry is not whether the materials sought are private, but whether they are reasonably calculated to contain relevant information.”

What did we learn from this Decision?

The Court of Appeals did not seem impressed with the argument that “privacy” serves as a shield to production of materials from a Facebook “private” account. The Court appeared loathe to leave the determination of what is “private” to the account holder, who easily can designate material as “private” and shield potential damaging material and relevant information from disclosure. Thus, just because material is contained in a social media account designated as “private” doesn’t mean that different or special rules apply.

Unfortunately, the defendant did not appeal from the motion court to the First Department, precluding the Court of Appeals from addressing certain other issues that had been raised below. Consequently, we do not know how far reaching the Court of Appeals’ opinion might have been.

Defense counsel in a personal injury action is well-served to inquire, in detail, at the deposition stage into the existence of all social media accounts and the type of information and/or photographs posted to the accounts. The defendant should then vigorously pursue discovery of any information that is material and relevant to the defense of the action. Unfortunately, we all have to wait until the next case makes its way to the Court of Appeals to know just how far it is willing to go. However, the message from the Court of Appeals remains clear – it is not prepared to cloak social media accounts with any special protection.

For further information or any questions please contact:
Glenn A.Jacobson, Esq, gjacobson@agfjlaw.com
Barry Jacobs, bjacobs@agfjlaw.com.

Footnotes:
[1] This disclosure was directed presumably to allow the defendant to investigate the legitimacy of plaintiff’s claims that she was unable to use a computer and had difficulty composing prose.

[2] Although defendant was denied much of the disclosure sought in its motion to compel, it did not appeal to the Appellate Division, First Department. Having failed to appeal, the Court of Appeals could review the Appellate Division Order only to the extent that it further limited Supreme Court’s disclosure Order. We are convinced, given the overall tenor of the opinion, that had the defendant appealed, the Court of Appeals would have ordered a much more extensive panoply of disclosure, and would have granted the defendant further access to plaintiff’s Facebook account.