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Court Rules Facebook Photos on a Deactivated Account are Subject to Discovery

            With more and more people and businesses posting information on social media, courts continue to grapple with where social media posts are relevant or not relevant to a particular case.  In Forman v. Henkin, 30 N.Y.3d 656 (2018), the Court of Appeals of New York ruled that previously posted photos on a deactivated Facebook account were subject to discovery.

In Forman, the plaintiff alleged that she suffered spinal and traumatic brain injuries when she fell from a horse, resulting in cognitive defects, memory loss, difficulties with oral and written communication, and social isolation.  During her deposition, she testified that she previously posted on her Facebook account “a lot” of photos prior to her accident, which showed her active lifestyle, but she deactivated the account approximately six months after she was injured and could not recall whether she posted any post-accident photos.  The defendant sought unlimited authorization to obtain the plaintiff’s entire “private” Facebook account, claiming that the photos and writings would be material and necessary to his defense.  The plaintiff refused to produce the material, and the defendant filed a motion to compel discovery.

In support of his motion, the defendant noted that the plaintiff claimed she led an active lifestyle before the accident, but she claimed she could no longer cook, travel, participate in sports, ride horses, go to the movies, attend the theater, or go boating, among other limitations.  The defendant contended access to the plaintiff’s Facebook photos and written posts likely would be relevant to her allegations, including the extent to which she allegedly had trouble reading and writing messages.  The plaintiff opposed, arguing that the defendant did not establish a basis to access the “private” portion of her Facebook account and further noting that the “public” portion of her account included only one photo, which did not contradict her claim or testimony.  The Supreme Court (the trial court in New York) granted the motion, ruling that the plaintiff had to produce all photos of herself that were posted on the “private” portion of her account prior to the accident that she intended to introduce at trial as well as all photos of herself that were posted on the “private” portion of her account after the accident that did not depict her naked or during romantic encounters.  In addition, the Supreme Court ruled that the plaintiff had to authorize Facebook to produce records showing each time she posted a private message after the accident and the number of characters or words in the message.  Although the court denied much of the relief the defendant sought, the plaintiff appealed.  The appellate division modified the Supreme Court’s order by limiting the production of photos to those that the plaintiff intended to introduce into evidence at trial and by eliminating the requirement that the plaintiff authorize Facebook to produce data about the plaintiff’s post-accident messages.  The defendant then appealed to the Court of Appeals.

The Court of Appeals noted that it was unclear what standard the appellate court applied when making its ruling, but it held the appellate court erred by employing a “heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account.”  The court explained that it is improper to require the party seeking discovery to “identify relevant information in the Facebook account” in order to warrant disclosure, because such a requirement would effectively “allow[ ] the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.”  The court further explained that “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 need only be appropriately tailored and reasonably calculated to yield relevant information.”  Thus, the court “reject[ed] the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials.”  The court also “rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable.”  The court explained that directing disclosure of a party’s entire Facebook account “is comparable to ordering discovery of every photograph or communication that a party shared with any person or any topic prior to or since the accident[,]” which likely would yield far more irrelevant information than relevant information.

The court ultimately held that courts should do the following when determining the extent that information from social media accounts should be produced:  (1) consider the nature of the event giving rise to the litigation, the injuries claimed, and any other information specific to the case that would help assess whether information relevant to the case likely would be found in a social media account; and (2) balance the potential utility of the information sought against any “specific ‘privacy’ or other concerns” raised by the account holder.  Upon weighing these concerns the Court of Appeals instructed courts to issue orders tailored to the particular controversy that aimed to produce relevant material and avoid disclosing irrelevant material.

Applying these principals to the case, the Court of Appeals held that the appellate court erred by modifying the Supreme Court’s order to limit the disclosure of materials from the plaintiff’s Facebook account only to those materials the plaintiff intended to introduce into evidence at trial.  In this regard, the court noted that the plaintiff testified that she had posted “a lot” of photos showing her active lifestyle and it was reasonable to infer that the photos she posted after her accident would be reflective of her post-accident activities and/or limitations.  The court further noted that the Supreme Court’s order was not burdensome because there was a six month time frame on the materials to be produced (because the plaintiff deactivated her account approximately six months after the accident) and the court protected the plaintiff from embarrassment or invasion of privacy by exempting nude or romantic photos from production.  In addition, the Court of Appeals held that the appellate court erred by eliminating the need to produce data from Facebook about the plaintiff’s posts, finding such data was reasonably likely to be relevant to the plaintiff’s claim that she suffered cognitive injuries which included difficulty writing messages and using a computer.

The court’s decision in Forman is important because it provides guidance on how to evaluate discovery of social media materials.  In short, discovery requests that are not tailored to potentially relevant material and that seek unfettered access to an adverse party’s social media accounts likely will not be granted.  Instead, parties must provide some basis for requesting information in an adverse party’s social media account and they should not expect to be granted unfettered access to an adverse party’s entire social media account.  With that said, parties cannot avoid production of social media posts by making some amorphous claim about invasion of privacy and making the other party prove the existence of the posts sought.  In other words, parties should be strategic when seeking discovery from social media accounts.  Although Forman was a personal injury case, the analysis can easily apply to other cases, such as employment cases and various types of business disputes.