Forman v. Henkin
70 N.Y.S.3d 157, 30 N.Y.3d 656, 93 N.E.3d 882 (2018)
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Rule of Law:
In a personal injury action, discovery of a plaintiff's private social media content is governed by the general standard of whether the request is reasonably calculated to yield information that is 'material and necessary' to the defense. A defendant is not required to first establish a factual predicate by identifying contradictory information on the plaintiff's public profile.
Facts:
- Plaintiff fell from a horse owned by defendant, allegedly suffering spinal and traumatic brain injuries.
- Plaintiff claimed these injuries resulted in cognitive deficits, memory loss, communication difficulties, and social isolation.
- Before the accident, plaintiff maintained an active Facebook account where she posted 'a lot' of photographs depicting her active lifestyle.
- Approximately six months after the accident, plaintiff deactivated her Facebook account.
- Plaintiff alleged her injuries made it difficult to use a computer and compose coherent messages, stating that a simple email could take her hours to write.
Procedural Posture:
- Plaintiff filed a personal injury lawsuit against defendant in the Supreme Court of New York, a trial-level court.
- During discovery, defendant moved to compel plaintiff to produce information from her private Facebook account.
- The Supreme Court partially granted the motion, ordering disclosure of certain post-accident photographs and metadata about plaintiff's messaging activity, but not the content of messages.
- Plaintiff, as appellant, appealed the Supreme Court's order to the Appellate Division, an intermediate appellate court.
- The Appellate Division modified the trial court's order, further restricting discovery to only those photographs plaintiff intended to introduce at trial.
- The Appellate Division then granted defendant leave to appeal its decision to the Court of Appeals, New York's highest court.
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Issue:
Does a defendant seeking discovery of a personal injury plaintiff's private social media account first have to establish a factual predicate by identifying relevant and contradictory information on the plaintiff's public profile?
Opinions:
Majority - DiFiore, Chief Judge
No. A defendant seeking disclosure of a plaintiff's private social media information is not required to meet a heightened threshold of first identifying contradictory information on the plaintiff's public profile. The governing standard is simply whether the requested materials are 'material and necessary' to the defense. New York's liberal discovery policy requires disclosure of any facts bearing on the controversy, and conditioning discovery on what a user chooses to make public would allow that user to unilaterally obstruct discovery by manipulating privacy settings. While a litigant does not surrender all privacy interests, even private materials are discoverable if they are reasonably calculated to contain relevant information. Here, plaintiff's claims regarding her pre-accident lifestyle and post-accident physical and cognitive limitations made her Facebook photographs and messaging data relevant and discoverable under this standard.
Analysis:
This decision solidifies the standard for social media discovery in New York, rejecting a restrictive approach adopted by some lower courts. By applying the traditional 'material and necessary' standard, the Court of Appeals ensures that social media evidence is treated like other forms of evidence, preventing parties from using privacy settings as a shield to hide relevant information. The ruling strikes a balance, discouraging overly broad 'fishing expeditions' by requiring that discovery requests be tailored to the specific claims of the case, thereby protecting against unnecessary intrusions into privacy while promoting the state's policy of open discovery.
