In an important decision for personal injury litigators, the New York Court of Appeals, the State’s highest court, recently ruled that privacy settings in Facebook do not protect your clients from legitimate discovery requests. In Forman v Henkin, the Court of Appeals unanimously reversed the appellate court and reinstated a trial judge’s ruling requiring Plaintiff, who alleged she was disabled in a horse-riding accident, to turn over to Defendant horse owner photos and other information posted under Facebook’s privacy settings, before and after her injuries. Noting the controversy over what information on Facebook deserves privacy protection, the Chief Judge wrote that it is appropriate to require disclosure of materials that are “reasonably calculated” to contain “material and necessary” evidence. In other words, discovery rules trump privacy settings on Facebook.
Plaintiff testified in her deposition that she became a recluse after suffering a spinal injury and brain damage due to Defendant’s negligence. She stated that she would post regularly on Facebook about her active lifestyle prior to her accident but deleted her Facebook account six months after the accident. She also stated she had trouble with computers and composing coherent messages as a result of her injuries. She testified that a simple email could take her hours to write because she had to go over it repeatedly to make sure it made sense.
Defendant sought access to Plaintiff’s entire “private” Facebook account contending that the photos and information posted would be material and necessary to his defense. He argued that Plaintiff’s claims of inability to do certain activities resulting from the accident would be borne out by her postings or would not. He also contended that her messages were relevant to test her credibility regarding her difficulties using the computer and composing emails. Plaintiff argued that Defendant had shown no basis for viewing her “private” posts because her public posts did not provide such a basis.
The trial judge ordered Plaintiff to disclose to Defendant pre-accident photos she intended to use at trial, post-accident photos not depicting nudity or romantic encounters, and access to post-accident records showing each time Plaintiff posted a private message after the accident and the number of characters or words in the messages. The trial judge stopped short of ordering disclosure of the contents of her messages even though Defendant had asked for that information as well.
Plaintiff appealed. Notably, Defendant did not appeal or cross-appeal and so the issue of whether the content of the messages should be disclosed was not before the appellate court. The appellate court limited the disclosure to photos intended for trial, whether posted before or after the accident. Two justices dissented concluding Defendant was entitled to broader discovery. The Appellate Division granted Defendant leave to appeal to the Court of Appeals to decide whether its Order was properly made.
The Court of Appeals reversed and reinstated the trial judge’s ruling, agreeing with Defendant that the appellate court erred in employing a “heightened threshold” for disclosing social media records that depended on what users chose to share publicly. The Court of Appeals found that even if materials on Facebook could be characterized as private, that would not preclude disclosure because private materials may be subject to discovery if they are relevant. “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.”
Attorneys should caution their clients to suspend their Facebook accounts after they have an accident because private or not, their posts still may be discoverable. The decision suggests that discovery of social media posts turns not on privacy settings but rather on relevance and long-standing discovery rules. Clients and attorneys should be aware that discovery rules long have been very liberal, and that broad disclosure will apply to new forms of media regardless of self-imposed “privacy” settings.