The New York Court of Appeals Takes Stance on Discovery of Private Social Media Accounts

As the modern world continues to gravitate toward heavy social media usage, courts are tasked with keeping up with the discoverability of that information. On February 13, 2018, the New York Court of Appeals decision in Forman v. Henkin clarified the standard for discoverability of private social media accounts"”a critical avenue of evidence for modern practitioners.

In the case, the plaintiff fell from a horse owned by the defendant and alleged that she suffered spinal and brain injuries that resulted in cognitive deficits, difficulties with written communication, and social isolation. The plaintiff additionally claimed she uploaded "a lot" of Facebook photos and written posts depicting an active lifestyle before the accident"”some of which were deemed "private" based on her account settings.

The defendant then moved to compel an authorization to obtain the plaintiff's entire private Facebook account. The Supreme Court granted the motion in a limited fashion, directing the plaintiff to produce all photos of herself privately posted on her Facebook page prior to the accident that she intended to introduce at trial, all photos after the accident, and records of the numbers of characters and words in each private message she sent after the accident.

On the plaintiff's appeal, the Appellate Division limited the lower court's holding to only Facebook photos the plaintiff intended to introduce at trial. Importantly, the Appellate Division employed a heightened threshold for production of private social media records, as opposed to public ones.

The Court of Appeals held that the application of this "heightened threshold" was an error, reinstating the Supreme Court's order. Critically, the court held that a user's ability to unilaterally obstruct posts via privacy settings should not impact the discoverability of private posts as compared to public posts, noting that, "[T]he threshold inquiry is not whether the materials sought are private, but whether they are reasonably calculated to contain relevant evidence." The court did, however, "reject[] the notion that commencement of a personal injury action renders a party's entire Facebook account automatically discoverable."

The court then articulated its standard for social media disclosure, holding that first, courts must "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." Then, "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."

The plaintiff contended that this constituted an unjustified invasion of privacy. The court employed the analogy of medical records, which are private and/or privileged until a party affirmatively places mental/physical condition at issue. At that point, certain privacy interests are waived.

The Court of Appeals has encouraged lower courts to tailor social media discovery carefully and on a case-by-case basis. Practitioners should be aware that while they do not have carte blanche access to a litigant's social media, they should be given an opportunity to examine relevant social media material"”private or public"”as with any other type of discovery endeavor.