New York’s highest court rules on Facebook discovery
The Court of Appeals just issued some guidance for those of us trying to figure out what social media might do for (or to) a case. Last week it handed down Forman v. Henkin, 2018 N.Y. Slip Op. 01015 (Feb. 13, 2018), which establishes that privacy settings on accounts such as Facebook aren't enough to keep material away from an adversary. The “threshold inquiry,” said the Court, “is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”
In Forman, a horseback rider fell from a horse, which caused spinal and traumatic brain injuries. She claimed these injuries included memory loss, difficulty communicating, various cognitive problems, and social isolation. She deactivated her Facebook account about six months after the accident, but this was still six months of material. Besides, the plaintiff said at her deposition that this account had “a lot” of pre-accident photos that documented the active lifestyle she used to have.
Unfortunately for the defendant, the one photo on the plaintiff's profile that could be viewed by the general public wasn't really relevant. So, he moved to compel disclosure of various posts which had been set to “private” (meaning that only people the plaintiff had connected with could see them).
The motion court granted some of the defendant's request. It ordered the plaintiff to provide all pre-accident private photos which she intended to use at trial, limited post-accident private photos, and an authorization for certain data about Facebook messages she'd sent (which went to her ability to communicate with the same fluency as she could before her fall).
The appellate court restricted this holding, limiting the required disclosure to photos the plaintiff intended to introduce at trial. But the Court of Appeals, reiterating the liberal discovery standards under CPLR 3101(a), reinstated the motion court's decision.
The Court agreed with the defendant that subjecting social media records to a heightened threshold depending on privacy settings was an error. Since “the purpose of discovery is to determine if material relevant to a claim or defense exists,” the Court rejected the notion that the scope of disclosure should be circumscribed by “the account holder's so-called 'privacy' settings.” After all, this limitation would basically “allow[] the account holder to unilaterally obstruct disclosure merely by manipulating 'privacy' settings or curating the materials on the public portion of the account.”
In the end, the Court fell back on “well-established rules” and set out a two-step analysis for judicial intervention. First, a judge should determine whether relevant material is likely to be found on social media based on the nature of the claim and injuries. Second, based on the balance of the material's utility against privacy or other interests, the judge should tailor her order to the controversy, including specific identification of the nature and time of the materials required to be disclosed. Basically, as it has since Allen v. Crowell-Collier Pub. Co. in 1968, the test remains “one of usefulness and reason.”
“It depends” has, for ages, been the unofficial motto of the legal profession. Forman shows that this is no less true in the Digital Age.