WCM Partners Michael Bono and Brian Gibbons and associate Christopher Soverow have obtained a ruling from the New York Court of Appeals holding that social media records, such as Facebook posts, are not subject to a heightened standard of discovery, and that instead the traditionally broad rules of New York apply.
In Forman v Henkin, the plaintiff allegedly fell from a horse due to the negligence of the defendant. As a result of the fall, plaintiff claimed she suffered various injuries, including traumatic brain injury, which resulted in cognitive impairment, emotional damages, and impairment of her ability to socialize or engage in accustomed recreational activities. Among the cognitive effects, the plaintiff alleged she had difficulty reading, using a computer, or composing messages. With respect to Facebook, the plaintiff posted “a lot” prior to the accident, but could not testify as to her post-accident Facebook usage and ultimately deactivated her account some six months later.
The trial court granted WCM’s motion for disclosure of Facebook records, but limited such disclosure to all non-romantic post-accident Facebook photos, and information about the date, time, and amount of characters of any Facebook post made after the accident. On appeal, the First Department reversed and held that under the current standard applying to Facebook disclosure, the defendant was unable to establish that there was information on the public section of the plaintiff’s Facebook account that contradicted her claims, and as such, defendant was not entitled to access plaintiff’s private Facebook account.
Due to a lengthy two justice dissent, WCM was awarded leave to appeal to the Court of Appeals. The Court of Appeals rejected the heightened standard set by the First Department, holding “[w]hile 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.” The Court reasoned litigants should not be arbitrarily limited by the account holder’s privacy settings, while on the other hand, also recognizing the mere possession of a Facebook account does not render all contents subject to discovery.
Rather than embrace a heightened standard or a “one-size-fits-all rule,” the Court provided three broad guidelines to lower courts: (1) consider whether relevant material is likely to be found given the nature of the claims made; (2) balance utility of the records against “any specific ‘privacy’ or other concerns raised by the account holder; and (3) evaluate whether temporal limits are appropriate. With regard to sensitive or embarrassing information, the Court observed the party’s remedy lies in moving for a protective order under CPLR § 3103(a).
Citing to privacy concerns, however, is not an automatic restriction on disclosure. Although the Court declined to rule on the controversial question of whether there is any privacy expectation for social media posts, the Court held relevancy trumps privacy, citing the ubiquitous example of disclosure of confidential medical records in personal injury cases. Thus, “[f]or purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”
It will be interesting to see how courts apply this ruling in the future. Of significance, here the Court focused on plaintiff’s prior usage of Facebook, and how post-accident Facebook activity could specifically demonstrate or undercut her claimed injuries, such as cognitive impairment and diminished enjoyment of life. We would expect that similar connections will need to be established in order to trigger disclosure of social media records in future cases, and it will be interesting to see how the standard develops going forward.
Thanks to Chris Soverow for his contribution to this post and please write to Mike Bono for more information.