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Electronic discovery in New York -- disclosure of "private" Facebook photographs.

Photograph:  Woman having her picture taken on a cellphone.

Think you’re safe in litigation from discovery of your Facebook or other social media information just by switching your Facebook pages from publicly-accessible to private? 

You’d be wrong. 

In a classic case of “be careful what you ask for,” an injured plaintiff snatched defeat from the jaws of victory in a recent New York State Court of Appeals decision regarding discovery of plaintiff’s “private” portion of her Facebook social media pages during litigation.

The case, Forman v. Henkin, 30 N.Y.3d 656 (2018), was handed down on February 13, 2018.  The facts are straightforward: plaintiff claimed she sustained spinal and traumatic brain injuries when she fell off a horse owned by the defendant.  The defendant horse owner sought discovery in litigation of both pre-incident and post-incident Facebook pictures and postings of plaintiff.  Why post-incident?  To see if plaintiff was telling the truth about her post-fall physical and mental limitations resulting from her injuries by looking at her Facebook postings and pictures.

When plaintiff refused to provide to defendant an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, defendant moved in court to compel production of the same, asserting that the Facebook material sought was relevant to the scope of plaintiff’s injuries.  The trial court granted the motion to compel to a limited extent -- directing plaintiff to provide all post-incident photos of herself privately posted on Facebook that “do not depict nudity or romantic encounters,” but it refused to order disclosure of the content of any of plaintiff’s written Facebook posts, whether authored before or after the incident. 

On appeal to the Appellate Division, First Department -- only the plaintiff appealed, defendant inexplicably did not -- modified the lower court’s order by further limiting disclosure to photographs posted by plaintiff on Facebook that plaintiff intended to introduce at trial, whether pre- or post-incident.  Quite a fine result for the appealing plaintiff, but there was a problem: two Justices in the Appellate Division dissented.  As such, the defendant was granted leave to appeal the result to New York’s highest court, the Court of Appeals.

This is where plaintiff’s trail of relative success came to an abrupt end.        

It has long been the bright-line rule in New York State that that "[t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof."  Courts in New York have always stated that this statutory directive in the New York Civil Practice Law and Rules (C.P.L.R.) is to be liberally construed, meaning broad, deep and thorough, so long as relevant to the claims at issue.  I have made that argument myself in dozens of motions or appeals where the defendant has withheld clearly discoverable documents, records or other items of evidence necessary to my client -- the deliberate purpose of the defense being to thwart my client’s case.

Usually, plaintiff seeks discoverable information from the defendant, who is likely in a better position to have documents, records and things necessary to prove the plaintiff’s case.  However, in the Forman case, as with all discovery conducted of (not by) plaintiff, the shoe is uncomfortably on the other foot.

The Court of Appeals, traversing the well-trod path of liberal discovery rules and decisions in New York, articulated a two-part test for producing documents and records from social media sites such as Facebook -- both publicly available and restricted behind privacy settings -- as follows:

“Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper ‘fishing expeditions.’  In the event that judicial intervention becomes necessary, courts should first 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.  Second, 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 non-relevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.  Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3101[a]).  Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.”

As a result, the Court of Appeals in Forman reversed the Appellate Division limitations on pre- and post-incident Facebook discovery, and directed that the Supreme Court’s underlying order to be reinstated in its entirety -- thereby requiring the plaintiff to provide all post-incident photos of herself privately posted on Facebook that “do not depict nudity or romantic encounters.” 

Not a good result for injured plaintiffs everywhere.  At all.

This decision will have far-reaching implications for discovery of Facebook photographs in litigation in New York and far beyond -- for often as the powerful and influential New York State courts go, so goes the nation.  

James Snyder