Happy New Year! After about a six week layoff, the Court of Appeals’ argument calendar resumes on Tuesday, January 2, 2018 for the first day of the January Session. The Court will hear arguments today in four cases on the following issues: (1) what is the appropriate standard to be applied for disclosure of private social media posts during discovery; (2) what is the scope of the term “accident” under Retirement and Social Security Law § 363, which provides enhanced pension benefits for police officers and firefighters who are “physically or mentally incapacitated for performance of duty as the natural and proximate result of an accident” while on duty; and (3) whether youthful offender adjudications can be considered when assessing a sex offender’s risk level under the Sex Offender Registration Act.
No. 1 Forman v Henkin
When you post things to social media, whether it’s to Facebook, Twitter, or Instgram, you know that your posts are presumptively open to the public. Unless you restrict the privacy settings of your accounts, anyone can go on your Facebook page or Twitter feed and see, save, or record what you posted. But what about when you do restrict access to your account? Are those posts still available for discovery in litigation? That’s the question that the Court of Appeals will face in arguments today.
In Forman, Kelly Forman sued Mark Henkin for injuries she suffered when she fell off one of his horses while riding in a state park on Long Island. Forman alleged that the leather strap attaching a stirrup to the saddle broke and caused her to fall. She claims that she suffered a traumatic brain injury that caused “cognitive deficits, memory loss, inability to concentrate, difficulty in communicating, and social isolation.” Although she was an active Facebook user at the time, about a year after her fall, she deactivated her account. Nonetheless, in discovery, Henkin sought an order compelling her to give him unrestricted access to her Facebook account, including posts from the non-public portion of her account.
Supreme Court granted the motion, in part, and ordered that Forman produce some private posts from her Facebook account, “including all photographs of herself that she privately posted after the accident, except those involving nudity or romantic encounters, and also the timing and length, but not the content, of her private Facebook messages.”
The Appellate Division, First Department, modified the order, however, on a 3-2 vote. The majority vacated the portion of the order requiring production of the private Facebook posts, except for any photos that she intended to use at trial. The majority cautioned that mere speculation that some of the private posts might be relevant is an insufficient basis to require production. The dissenters, however, argued that the majority put too high a burden on discovery of private social media documents. Case law over the last few years has tended toward allowing discovery, they said, and Supreme Court’s order was a proper balance under CPLR 3101(a).
The Court of Appeals will now hear arguments on this interesting issue, which will undoubtedly have great impact in personal injury, employment discrimination, and many other types of litigation throughout the state.
The Appellate Division, First Department’s order can be found here.