In the recent case of Forman v. Henkin, the New York Court of Appeals ruled that “private” Facebook posts were subject to the standard rules of discovery

 “Oops, Fluffy just bit Jason again. Thank goodness she hasn’t hurt anyone … yet!”

“Can’t believe I have to work with these stupid women in my office. Shouldn’t they be home in the kitchen making dinner for someone?”

“What a great run! #10miles #marathontraining #timeforpizza”

People write some of the most amazingly inadvisable things on Facebook. Sometimes, those posts reflect catastrophically bad or even dangerous judgment or unacceptable biases. Wait, though: what, you ask, could be wrong with humble-bragging about a 10-mile run? Nothing—unless you’ve got a lawsuit or investigation pending about your allegedly severe injuries or your workplace disability. 

The problem is that most of us, when we post on Facebook, aren’t thinking of how our posts could be used against us in litigation. Besides, what you say privately to your friends and family shouldn’t be discoverable just because you said it on Facebook, should it? You’ve carefully adjusted your privacy settings so that those posts can only be seen by people you know, not by an opponent in litigation!

Not so fast. Anything you type online could come back to haunt you. That’s certainly what the New York Court of Appeals held in the recent case of Forman v. Henkin, 30 N.Y.3d 656 (2018).

The Discoverability of “Private” Facebook Posts in Forman v. Henkin

Kelly Forman sued Mark Henkin in 2011, alleging that she was injured when she fell off his horse. Specifically, she claimed that she suffered “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.”

Before the accident, Forman said, she had an “active lifestyle.” That included cooking, traveling, playing sports, riding horses, boating, and other social activities. She stated that this lifestyle was reflected on her Facebook account, on which she posted “a lot” of photographs.

About six months after the accident, Forman deactivated her Facebook account, discouraged that it was too difficult for her to use her computer or compose coherent posts for her friends to read. She claimed that due to her brain injury, she could no longer spell words correctly, use proper grammar, or “express herself the way she did before the accident.” Forman alleged that she had grown “reclusive” because of her injuries and her communication difficulties. Something as simple as an email might “take hours to write.”

However, Henkin was not one of Forman’s Facebook friends, so he could not see her account to assess the truth of these statements. The only publicly available information about Forman on Facebook was a single unhelpful photograph. Anticipating his need to defend against Forman’s claim of injuries and damages, Henkin sought access to Forman’s entire “private” Facebook account, those posts and photos shared only with her friends. He argued that her photographs and the text of her posts were “material and necessary to his defense,” specifically to the scope of her injuries and her overall credibility.

The trial court granted Henkin’s motion, but only in part. That court ruled that Forman must produce any photographs prior to the accident that she intended to introduce at trial, all photographs she posted after the accident (so long as they did “not depict nudity or romantic encounters”), and records of each time she posted after the accident along with the number of characters—but not the specific content—in each of those messages. 

Surprisingly, only Forman appealed this ruling to the New York Appellate Division. That intermediate court modified the lower court ruling, holding that Forman need not produce any data about the text of her postings or any photographs except those she intended to use at trial. (Which, of course, would not be expected to undercut her own credibility.) Henkin was, however, granted leave to appeal to the highest court in New York, which he did.

The New York Court of Appeals reinstated the trial court’s ruling, holding that “private” posts on Facebook are not entitled to any special protection based on the user’s privacy settings. Rather, such posts should be subject to discovery if they are “material and necessary to the prosecution or defense of an action.” (Unfortunately, Henkin had not appealed the original trial court’s ruling, so the Court of Appeals was not able to provide him with that complete remedy. We’ll get back to this nuance in just a moment.)

As with most jurisdictions, New York provides for broad discovery. The state’s rules allow for “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Essentially, anything that is relevant to a disputed issue—unless it is privileged or otherwise protected as attorney work product or trial preparation materials—should be subject to discovery. The Court of Appeals held that “there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules.”

That wasn’t how the intermediate court saw it. That court ruled that Henkin must find a “factual predicate” in Forman’s public Facebook content to prove that her private posts were likely to be relevant to her allegations or his defenses. This, Henkin argued, imposed a “heightened threshold for production of social media records that depends on what the account holder has chosen to share” publicly.

The Court of Appeals agreed. It recognized that this limitation would allow an account holder to “unilaterally obstruct disclosure” simply by eliminating any public posts or manipulating her privacy settings. Nor should a party be required to prove that discovery exists to request it. Indeed, in “most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence.” Instead, courts should continue to use the common standard of whether information is relevant to the dispute, even when considering “private” social media content.

Of course, that standard doesn’t open the door for discovery of an entire social media account. This would be “comparable to ordering discovery of every photograph or communication that [a] party shared with any person on any topic.” Information must still be relevant to be discoverable. The correct threshold question, in short, wasn’t whether information was believed to be “private” but whether it was reasonably calculated to contain relevant information.

After all, emails are commonly believed to be entirely private—far more so than Facebook posts—because they involve only the sender and the recipient. Yet emails, along with text messages, are readily discoverable so long as they are relevant to an issue in dispute in a case. Even the right to privacy in medical records, generally protected under the physician-patient privilege, is waived when a party asserts an injury or places her health in issue in litigation.

But wait: what of the fact that Henkin didn’t originally appeal? This, the Court of Appeals ruled, limited its ability to correct any errors that occurred in the trial court, since Henkin did not note any objection to the original, quite limited, ruling. Therefore, the Court of Appeals reversed the order of the intermediate appellate court and reinstated the trial court’s ruling but did not broaden that ruling to include any of the content of Forman’s messages.

What Does Forman v. Henkin Mean for Social Media Collections?

The bottom line is that companies would be wise to capture any online or social media content that may be relevant to litigation. In short, if information on your website—or your opponent’s—is central to your claim or to a defense, you need to be sure that you preserve it in a way that will stand up in court. That means your web capture must be admissible and subject to authentication. 

Native-format web archiving using a third-party expert—one that is both impartial to the litigation and that can testify in court about the method of capture and its reliability—allows native review of all online content. Native collection and review means that a user can navigate through a preserved website or social media account as if it were live. Users can interact with dynamic website features like mouse-over menus, hidden text, or image carousels. They can also search for specific information, fill in forms or calculators, and click through any links or associated content.

Don’t leave the capture of comprehensive, admissible website information up to chance.