Private Facebook Posts Could Be Fair Game For Discovery

by Fisher Phillips
Contact

Fisher Phillips

New York’s highest court recently held that social media users may be required to turn over information from their accounts—regardless of the user’s chosen privacy settings—as part of the discovery process (Forman v. Henkin). This decision will likely prove useful to employers both in and outside New York, who often seek disclosure of their opponents’ posts on Facebook or other social media during litigation with their employees.  

Private Facebook Posts Become Critical Evidence

The case arose after a woman named Kelly Forman was injured in a horseback-riding accident. She sued the horse’s owner, Mark Henkin, for damages allegedly caused by the mishap, including spinal and traumatic brain injuries. She claimed the injuries led to cognitive defects that impaired her ability to communicate and resulted in social isolation. At her deposition, Forman testified that, prior to the accident, she often documented her life on Facebook, but that her injuries made it difficult to use a computer or compose coherent messages and prevented her from continuing to do so. She claimed that she had since become reclusive.

Henkin sought production of Forman’s “private” Facebook posts (i.e., those not shared with the general public) in order to determine whether she was telling the truth, and to determine the full extent of her alleged incapacity. Forman refused to produce the private posts, arguing that it would be an unacceptable intrusion on her personal life.

The defendant moved to compel disclosure, and the lower state court ordered Forman to turn over only some of the requested nonpublic information from her Facebook page. The Appellate Division took a harder line against disclosure, holding that Forman need only produce those posts she intended to use at trial.

New York’s Highest Court Permits Discovery

The defendant appealed the decision to New York’s highest state court, the Court of Appeals, where it was reversed on February 13, 2018. The court said that “there was nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules” permitting discovery of all matter “material and necessary” unless protected by a privilege. In so doing, the court rejected a heightened standard used by some lower courts that require an opposing party to first identify information in the public portion of the account that contradicted the party’s allegations before permitting it to compel discovery of the private portion.

The court cautioned, however, that its holding did not mean an entire Facebook account should be rendered automatically discoverable simply because the user commenced a personal injury action. Instead, the Court of Appeals directed the lower courts to analyze disclosure on a case-by-case basis, considering the nature of the event that gave rise to the litigation and the injuries claimed, to assess whether relevant material is likely to be found on the private social media account. The court also advised that disclosure orders should be narrowly tailored to avoid disclosure of non-relevant material.

Decision Advances Social Media Discovery

The court’s decision is an arrow in the quiver for employers seeking discovery of private social media during litigation with their current or former employees. It means that New York courts can no longer apply a heightened standard when determining whether private social media content should be disclosed to an opposing party. Instead, they should now require production if the discovery request is reasonably calculated to yield information that is material and necessary. 

This decision might also signal the start of a trend whereby courts throughout the country demonstrate a better understanding of the role of social media in discovery. Thus far, courts have shown muddled views on the subject, with some wary of permitting discovery of “private” social media, while others have mandated broad production. With Forman v. Henkin in mind, courts across the country may recognize that social media should be subject to the same longstanding local rules applied to all other discovery. 

As mentioned previously, courts will not abandon discovery guidelines altogether to allow unbridled discovery of litigants’ social media accounts. You should work with your counsel to craft social media discovery requests wisely in order to have the best chances of the court ultimately mandating disclosure. Thus, you should not request production of a person’s entire Facebook or other social media account; this will likely be viewed as a fishing expedition.   

Instead, you should work with your counsel to draft more tailored discovery requests that seek targeted discovery of social media tied to the specific issues in the case. For example, if the case involves emotional distress damages, you should ask for all social media posts that comment on the employee’s mood, feelings, emotions, or state of mind.   

Generally speaking, you and your counsel should be familiar with the various and ever-growing array of social media platforms that your employees are likely to use. While there are some stalwarts in social media (e.g. Facebook, LinkedIn, Twitter and Instagram), other platforms like Snapchat, Reddit, and Pinterest are also popular, and new ones are developing regularly. The better you understand what is out there, the easier it will be to formulate discovery requests tailored to address those platforms.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.