Social Media: Are Private Posts Accessible in Discovery?

by Jacquelyn Duhon, Issue Editor

I. Introduction

Social media’s ubiquitous presence in modern society has impacted every facet of life, and the legal realm is no exception. When information posted to a personal social media account becomes relevant to a lawsuit, it becomes unclear what is and is not discoverable to parties in a lawsuit. Many social media websites allow a user to adjust the privacy settings on his profile to restrict his audience size to certain individuals as desired,[1] therefore creating different expectations of privacy in “public” posts and “private” posts. A growing number of courts have addressed the scope of discovery of postings to and communications through social media websites.[2]

II. The Forman Decision Extends Discovery to Facebook

The most recent case on the matter arises out of New York in Forman v. Henkin, a horseback rider who fell from a horse and allegedly suffered spinal and traumatic brain injuries brought a personal injury action against the owner of the horse.[3] The defendant sought unlimited authorization to obtain the plaintiff’s entire private Facebook account, arguing that the postings would be material and necessary to the defense.[4] The Court of Appeal held that the plaintiff’s pre-accident and post-accident photographs posted privately on the plaintiff’s Facebook account and the data revealing the timing and number of characters in post-accident messages posted privately on the plaintiff’s account were discoverable.[5]

III. Statutory Basis for Discovery Suggests Social Media is Available

The statute governing the scope of discovery embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise.[6] The rights to disclosure under N.Y. CPLR § 3101(a) is not unlimited, and the court recognized that discovery must be “evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure,”[7] and the request must be reasonably calculated to yield information that is material and necessary.[8]

New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request only needs to be appropriately tailored and reasonably calculated to yield relevant information.N.Y. CPLR § 3101(a).

The Forman court agreed that when it comes to production of social media records, there should not be a heightened threshold that depends on what content the account holder has chosen to share on the public portion of the account;[9] in fact, the court held that the account holder’s privacy settings should not govern the scope of disclosure of social media posts.[10] The commencement of an action, however, does not automatically make a party’s entire social media presence, both public and private, automatically discoverable.[11]

The court demonstrated that a one-size-fits-all approach was not ideal and that to assess whether relevant material is likely to be found, a court should 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 at hand.[12] In essence, a 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.”[13] One can see from the order in Forman an attempt to protect the plaintiff from unnecessarily disclosing sensitive or embarrassing posts with no real relevance but the exemption from disclosure any nudity or romantic encounters.[14]

The court does not state that private materials, if relevant, may be subject to discovery and are not automatically off-limits because of their private nature.[15] The threshold question, once again, is not whether the social media posts are private or public but whether they are reasonably calculated to contain relevant information.[16]

IV. The Forman Court Allows Discovery of Facebook

The court, following these principles, ruled that the Appellate Division should not have restricted the disclosure of the plaintiff’s Facebook account to only those photographs that the plaintiff intended to introduce at trial.[17] The plaintiff’s acknowledged habit of posting photographs showed her regular activities led to a reasonable basis that photographs posted after the accident would show her post-accident activities or limitations—though the only publicly available photograph available on the plaintiff’s account was not relevant.[18]

Additionally, data revealing the timing and the number of characters in post-accident messages posted privately on the plaintiff’s account were ruled discoverable because the data was directly relevant to the plaintiff’s claim that she suffered cognitive injuries that caused difficulty writing and using a computer.[19]

V. Conclusion

Social media users are increasingly aware of the privacy implications involved in their posts, and questions regarding its use will continue to be presented to the courts. Until there are specific rules for discoverable content within social media, courts will be left to pave the path. In Forman, the court allows discovery of private social media posts as they were directly relevant to the case. This case sets a precedent for other courts around the country beginning to deal with the same discovery issues.

[1]Facebook, https://www.facebook.com/help/325807937506242 (last visited Mar. 12, 2018) [https://perma.cc/UKK3-6VMH].

[2]Courts are not always in sync with whether private social media posts are accessible in discovery. See Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. 2012); Davenport v. State Farm Mut. Auto. Ins. Co., 2012 WL 555759 (M.D. Fla. Feb. 21, 2012); Nieves v. 30 Ellwood Realty L.L.C.,966 N.Y.S.2d 808 (N.Y. App. Term 2013). But seeFawcett v. Altieri, 960 N.Y.S.2d 592(N.Y. App. Div. 2013).

[3]Forman v. Henkin, 30 N.Y.3d 656, 659, 93 N.E.3d 882, 885 (2018).

[4]Id.

[5]Id.

[6]N.Y. CPLR § 3101(a).

[7]Forman, 2018 WL 828101, at *3.

[8]Id.at *2.

[9]Id.at *4.

[10]Id.

[11]Id..

[12]Id. at *5.

[13]Id.

[14]Id.

[15]Id.at *6.

[16]N.Y. CPLR § 3101(a).

[17]Forman, 2018 WL 828101, at *5.

[18]Id.

[19]Id.at *6.

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