In a striking reversal of a decision of the Appellate Division, First Department, the New York Court of Appeals firmly rejected the notion that there is a heightened “factual predicate” standard for discovery of material posted by a plaintiff on social media in Kelly Forman v. Mark Henkin, 2018 WL 828101, 2018 N.Y. LEXIS 180(February 13, 2018).  In its ruling, the high court explained that:

“While Facebook–and sites like it–offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

Prior to this ruling, several lower court rulings in New York drew a distinction between whether the material sought in discovery was on the “private” or “public” portion of the plaintiff’s Facebook account.  Under these rulings, information posted “privately” would only be discoverable upon a showing that the plaintiff had manipulated the “privacy” settings on Facebook to thwart disclosure.

In rejecting the notion that the confidentiality of  “private” postings should be given special protection from disclosure, the Court of Appeals reaffirmed that “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the part seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information.  Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists.  In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence.” (emphasis added).

This holding is significant because claimants often candidly discuss their medical condition and recovery from an accident or illness on Facebook and other social media. Plaintiffs have been known to post photographs and video, prior to seeking legal advice,  depicting post-accident exploits on jet skis, bicycles and other recreational equipment that may serve to undermine their lawyer’s assertions of irreparable and disabling injury. Even the post-accident posting of a coherent diary entry on social media was likely to cast doubt on plaintiff Kelly Forman’s claim that she was no longer able to use a computer to compose “inherent messages”.

In her complaint, Kelly Forman alleged that she sustained a serious brain injury as a result of falling off a horse, which left her unable to reason, find words, write or communicate effectively. The trial court acknowledged that photographs of plaintiff engaging in various activities after her accident, particularly activities she claimed she was no longer is able to engage in due to her fall, were of enormous probative value. Therefore, the trial court ordered her to produce any post-accident photographs on Facebook that did not depict nude or romantic encounters. Because of the cognitive injuries alleged, the trial court ordered plaintiff to provide an authorization to permit defendant to obtain records from Facebook, including archived or deleted records, showing each time plaintiff posted a private message and the number of characters or words in the text of each private message. However, the defendant was not permitted to obtain the content of the post-accident messages, but only a number or words or characters in the messages. Considering the allegations of injury, just being able to prove that plaintiff was using social media as a form of self-expression would be an accomplishment for the defense given the limitations presented.

On appeal, the Appellate Division, First Department, modified the trial court’s order by vacating that portion of the order directing plaintiff to produce Facebook photographs she did not intend to introduce at trial and the authorization for Facebook records.  Pursuant to the First Department’s reasoning, disclosure of the information sought turned on the extent to which some of the information sought was readily accessible, and not, as the Court of Appeals rebuked, as it should, on whether it is “material and necessary for the prosecution or defense of an action. ”  In its decision, the high court instructed New York’s trial courts that the competing interests between discovery and unnecessarily onerous applications of the disclosure statutes “must always be balanced: the need for discovery must be weighed against any special burden to be borne by the opposing party.”  Thus, the court opined that discovery requests “must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure…”