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NY’s Highest Court Rules Private Posts on Facebook are Fair Game in Discovery

Long before the digital age and proliferation of social media platforms like Facebook and Twitter, Marshall McLuhan mused, “publication is a self-invasion of privacy.”  Clearly, Professor McLuhan foresaw the pitfalls that can be associated with sharing too much information. Now, the New York Court of Appeals, the highest court in the state, has unanimously ruled that Facebook users can be ordered to disclose relevant posts and photographs, even where the user’s account is private.


In Forman v. Henkin, a case involving a personal injury and negligence action, the Court of Appeals ruled that limiting access only to a person’s public Facebook posts would run counter to “New York’s history of liberal discovery”.

In the case, the plaintiff, Kelly Forman, sued the defendant over spinal injuries and brain damage she allegedly sustained when she fell from the defendant’s horse.  As a result of the accident, the plaintiff claimed she suffered from cognitive defects, memory loss, social isolation and difficulty communicating. The plaintiff also claimed that due to the nature of her injuries, even a simple email could take hours to write.   Prior to the accident, the plaintiff had been an active Facebook user, but deactivated her account within months of the injury. Counsel for the defendant sought unrestricted access to the account, claiming the records were necessary to evaluate her credibility and to obtain evidence regarding the plaintiff’s alleged inability to read, write, use a computer, take photographs and generally engage in the activities of daily living.  In February 2014, the Supreme Court issued an order partially granting the defendant’s application to obtain certain private photographs and posts made both before and after the accident, on the ground that such evidence depicting the plaintiff engaging in activities she claims she is no longer able to engage in are probative. Although the defendant was denied much of the material he was actually seeking, the plaintiff still appealed the decision to the First Department, which then reversed the trial court’s order.  Thus, on appeal, the court blocked access to the posts on the ground that the potential relevance of the posts was speculative, and therefore, constituted the kind of “fishing expedition” that cannot be permitted.  However, two justices dissented arguing that the defendant was entitled to board access, and asking the court to reconsider the court’s precedent “addressing disclosure of social media information as unduly restrictive and inconsistent with New York’s policy of open discovery.”

The Appellate Division granted leave to appeal and the Court of Appeals ultimately reversed the First Department, reinstating the Supreme Court’s order.  Significantly, the Court of Appeals noted that the First Department erred by “employing a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account.” Chief Judge Janet DiFiore stated in her opinion, “[s]ome materials on a Facebook account may fairly be characterized as private…But even private materials may be subject to discovery if they are relevant.”  Furthermore, Chief Judge DiFore wrote, “[f]or purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information…”
Accordingly, even private posts and photographs are discoverable if the party seeking the discovery satisfies the threshold requirement that the request is “reasonably calculated to yield information that is material and necessary.”
If Professor McLuhan were alive today, he might caution, “beware of what you share.”
For more information: https://www.nycourts.gov/ctapps/Decisions/2018/Feb18/1opn18-Decision.pdf