Legal Update: Discovery of Facebook Accounts
Updated: Nov 19, 2019
On February 13, 2018, the New York Court of Appeals issued a decision in Forman v. Henkin addressing the scope of discovery of Facebook accounts. The plaintiff commenced this action seeking monetary damages for bodily injuries allegedly sustained when she fell from a horse while riding. At deposition, she testified about a Facebook account with “a lot” of photographs depicting her pre-accident life and activities, and that she deactivated that Facebook account six months after the accident. After depositions, the defendant requested an authorization, unlimited in scope, to obtain the plaintiff’s entire “private” Facebook materials. Plaintiff failed to respond to that request. Defendant moved to compel, and the trial court granted that motion in part. Specifically, plaintiff was ordered to produce all photos of herself privately posted to her Facebook account before the accident that she intended to introduce at trial, all photographs of herself privately posted to her Facebook account after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing a timeline of each time plaintiff posted a private message after the accident and the number of characters or words in those messages. The trial court did not order disclosure of the content of any of plaintiff’s pre- or post-accident written Facebook postings. From the “be careful what you wish for” department, only the plaintiff appealed the trial court’s decision. (The Court of Appeals noted that the scope of its review was limited by defendant’s failure to appeal the Supreme Court’s order.) In a 3-2 decision (134 A.D.3d 529 (1st Dept. 2015)), the Appellate Division modified the trial court’s order by limiting disclosure to posted photographs (pre- or post-accident) that plaintiff intended to introduce at trial, and eliminated the requirement for plaintiff to provide an authorization for the private message post accident entries. As it was a 3-2 decision, leave to appeal to the Court of Appeals was granted as of right. The Court of Appeals did not hold that the filing of a personal injury litigation necessarily causes the plaintiff’s entire Facebook account to be discoverable. The Court also did not make discoverability dependent upon what the account user chooses to share on a public or private portion of Facebook. Rather, as is so often the case, the Court set forth elements and factors to be considered and balanced when determining the scope of disclosure. The first factor is “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 asses whether relevant material is likely to be found on the Facebook account.” Second, the Court held that since there must be a balancing of “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 non-relevant materials.” The majority of cases involving such disclosures involve personal injury claims. In such cases, the Court advised “it is appropriate to consider the nature of the underlying accident and the injuries claimed and to craft a rule for discovery information specific to each.” The Court also acknowledged that limitations may be necessary involving potentially sensitive or embarrassing material that may be marginally relevant to the underlying case. An analogy that I have considered is the foundational principle that in bringing a personal injury action, a plaintiff does not open up their entire medical history for examination. Rather, there shall be full disclosure regarding the body part or parts alleged to have been injured in an accident. It is apparent that such a limitation on the scope of discovery is analogous to what the Court is attempting to accomplish in Forman. Finally, it should be noted that this decision only addresses a Facebook account, and only discusses disclosure of photographs, not posted text. It is reasonable to assume, however, that the decision would apply to other social media information, and that on a case-by-case basis both postings and photographs would potentially be discoverable.