On January 2, 2018, WCM partner Michael Bono appeared before New York’s highest court to challenge the standard for the production of Facebook information.

In Forman v. Henkin, plaintiff alleges she sustained a traumatic brain injury when she fell from a horse.  As a consequence of this injury, plaintiff alleges that she can no longer participate in many of the actives she previously enjoyed; that she could barely read or compose texts; that writing simple messages on the computer takes hours; that she couldn’t handle using the computer for more than 10 minutes without harming herself; and that her social network went from huge to nothing.

When questioned at her deposition, plaintiff testified that she posted frequently to Facebook before the accident, but was either unable or unwilling to testify about her post-accident Facebook practices, and her account was deactivated shortly after filing the lawsuit.

The defense made a demand to access plaintiff’s Facebook account to challenge her claims, and the trial court held that plaintiff was required to disclose all non-romantic photographs from her private Facebook account and to provide an authorization for Facebook to disclose the number of posts plaintiff made post-accident and the text count of those posts.

Plaintiff appealed, and the First Department held disclosure was not required because the defendant had not met the factual predicate required by prior courts.  Namely, defendant failed to show that there were relevant materials on plaintiff’s public Facebook page in order to establish the demand for records from the private account was reasonably calculated to lead to the discovery of information bearing on the claims.

On appeal, plaintiff has argued this standard is warranted in order to protect privacy and to prevent “fishing expeditions” in all cases where litigants have Facebook accounts.  The defense argued there is no reasonable expectation of privacy in social media accounts where the purpose is to share one’s thoughts and photographs which can be published or disclosed unconditionally by Facebook “friends.”   In addition, the current enhanced standard is not required for any other form of discovery, and disclosure should be warranted where targeted demands are made against specific claims within the context of the litigant’s Facebook practices.

A decision should be published within the next 30-60 days, and we will continue to follow the story on Of Interest.  Please write to Mike Bono for more information.