Discoverability of Information on Social Media
Should a personal injury plaintiff be compelled to give a court unlimited access to her Facebook account? According to the Appellate Division, First Department, the answer is no, but a dissenting opinion calls for a reevaluation of the Court’s decisions on this subject.
In Forman v. Henkin, 134 A.D.3d 529 (1st Dep’t 2015), the plaintiff alleged that she suffered injuries limiting her from doing various activities. She testified at her deposition that she used a Facebook account before the accident, but deactivated it after she started her lawsuit. The defendant moved for an order compelling the plaintiff to provide access to her Facebook account, including all photographs, status updates, and instant messages. The lower court ordered the plaintiff to produce all photographs of herself privately posted before the accident that she intended to use at trial, and all photographs taken after the accident that did not depict nudity or romantic encounters. She was also directed to include the number of words and characters in her private messages.
The Appellate Division modified the lower court order, finding that only photographs that the plaintiff intended to present to the jury at trial had to be disclosed. The defendant had not demonstrated his right to plaintiff’s nonpublic Facebook pictures or messages. The First Department and other Appellate Division Departments have required that a defendant requesting social media information must establish the relevancy of the requested disclosure before allowing discovery in this area. The plaintiff’s uploading of pictures or mere messages to other Facebook users did not meet this threshold of relevance.
The dissent recognized that the court’s prior recent decisions supported the majority opinion, but noted that the precedent relied upon is only a few years old. It recommended that the court reevaluate its precedent since social networking practices are still developing. The dissent was particularly concerned with the threshold requirement that the defendant could acquire nonpublic material shared on personal social networking sites if and only if he found something in the plaintiff’s public posts that contradicted her claims, which often requires judges to conduct an in-camera review to determine which posts are relevant. The in-camera review imposes a considerable burden on trial courts, which will only intensify as more and more people use social media sites. The dissent argued that a demand for social media posts, relevant to the issues raised in the case, would be consistent with the the traditional rules of discovery.
