Like privacy wonks have always said, everything you do online will live on forever. In metadata, back up tapes, and the cloud. The same is true for what you say on Facebook, Twitter, or any other social media platform. And although privacy settings can protect your content from the general public, limiting it to sharing with specifically designated family and friends, those same protections don’t hold in litigation.
That’s what the Court of Appeals held recently in Forman v Henkin (No. 1), which I previewed here. 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 unanimous Court of Appeals agreed with the Appellate Division dissenters. After spending a bit of time explaining Facebook’s privacy settings, and acknowledging that sharing things on Facebook is still fairly new (in the grand scheme of history), the Court held that “there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute” (Opn, at 7). New York’s normally broad discovery rules apply. No new or heightened standards for discovery are required, the Court held.
The Court rejected a former First Department rule for private social media discovery, which required the party seeking the information to establish a factual basis for delving into the private posts by showing that information on the public portion of a social media account tended to contradict or conflict with the plaintiff’s alleged injuries or claims. That rule, the Court held, “effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account” (Opn, at 8). That would be contrary to New York’s policy for allowing broad disclosure in litigation.
Discovery of private social media information isn’t unlimited, however, the Court held. Requests still have to be narrowly tailored and reasonably calculated to reveal relevant information. Fishing expeditions still aren’t allowed.
we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from unnecessarily onerous application of the discovery statutes (Opn, at 9-10 [cleaned up]).
Providing useful guidance to the trial courts supervising discovery, the Court took the opportunity to explain what the inquiry should be when discovery disputes arise.
In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]) (Opn, at 10).
Litigants and the courts now have a defined rule to apply—and to me what seems to be a sensible approach—when disputes come up about whether private social media posts should be discoverable. I’m sure further litigation will clarify how the rule applies in different and unique circumstances, but a little bit of predictability here should go a long way.
The Court of Appeals’ opinion can be found here.