A Facebook user’s privacy settings cannot determine the discoverability of relevant evidence, held New York’s high court, the Court of Appeals. In a unanimous decision, Forman v. Henkin, — NY3d —, 2018 N.Y. Slip Op. 01015, the high court stated that limiting access to only the public posts on an individual’s Facebook profile goes against “New York’s history of liberal discovery.” This decision from New York’s top appellate court brings social media discovery into line with ordinary discovery in personal injury cases and rejects the contention that plaintiffs retain a privacy interest in photographs, videos and other material that arguably undercut claims they seek to advance in litigation.
Kelly Forman, a Manhattan woman, brought suit against Mark Henkin, a horse owner, for injuries sustained by Forman while riding one of Henkin’s horses. Forman alleges that Henkin was negligent in failing to maintain the horse’s saddle strap. The strap broke and allegedly caused Forman to fall off of the horse, resulting in spinal injury and brain damage.
To defend himself against claims that Plaintiff’s injuries limited her ability to engage in certain activities and impaired her enjoyment of life, Henkin sought access to Forman’s entire Facebook account, including posts that were restricted to the general public via Forman’s privacy settings, in order to determine whether photos or statements contradicted Forman’s claims that the fall impaired her once-active lifestyle.
Writing for the court, Chief Judge Janet DiFiore stated that a party seeking any type of discovery must meet the threshold requirement that such a request is “reasonably calculated to yield information that is ‘material and necessary.’”
The Court of Appeals noted that the entire Facebook account of a personal injury plaintiff is not automatically discoverable. The court declined to announce a special rule regarding the discoverability of social media evidence, stating that “there is no need for a specialized or heightened factual predicate to avoid improper ‘fishing expeditions.’”
The court specifically rejected a rule that would prevent a defendant from going behind a plaintiff’s privacy screen unless defendant could show that material a plaintiff left open to public inspection tended to contradict a plaintiff’s litigation position. Such a rule requiring a party to identify relevant information in a plaintiff’s account allows the account holder to unilaterally obstruct disclosure merely by manipulating privacy settings or curating the materials that are available for public viewing. In broad language that will resonate in social media discovery, the court reminded the bar 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 request need only be appropriately tailored and reasonably calculated to yield relevant information.”
Tellingly, the court rejected the idea that a party has an expectation of privacy in social media posts maintained behind privacy settings when the posted material is relevant to a plaintiff’s claims on the basis that a party who commences a lawsuit waives privacy rights with respect to the issues raised. Chief Judge DiFiore analogized to the waiver of the physician-patient privilege that accompanies the commencement of a personal injury action, stating that “when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records…are waived.” However, the court rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account “automatically discoverable”.
Forman asserted that since the accident, she has become reclusive. She also claimed that due to an alleged brain injury, it could take her “hours” to compose a simple email because she had to review the material several times to make sure it made sense. In light of these and other claims, the high court held that Henkin is entitled to all photos on Forman’s private Facebook account, (excluding those that depict nudity or romantic content), and all messages sent after the accident showing the length of the message and how long it took Forman to post them, with the content of the message redacted.
Litigants are not without protection against unnecessarily onerous application of disclosure statutes. Under New York discovery statutes and case law, competing interests must always be balanced and the need for discovery must be weighed against any special burden to be borne by the opposing party. Nevertheless, here, the Court of Appeals held that Henkin’s discovery request was “reasonably calculated” to produce evidence relevant to Forman’s claims.
This important decision disabuses litigants of the notion that social media expression, protected behind a screen of privacy settings, should be exempt from discovery in personal injury actions. Where it has long been the case that material that was exposed to public view was discoverable, the Court of Appeals has now notified the bar that defendants are entitled to discover private posts when there is a good faith reason to believe that they contradict the poster’s injury claims.
