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Caution: You May Have To Disclose “Private” Social Media Postings in Litigation

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If you thought social media postings were “private” and immune from discovery in civil litigation, read on. In a major decision which opens the door to discovery of social media postings, the New York Court of Appeals recently held that the “private” portion of a litigant’s Facebook account was discoverable where the material sought was reasonably calculated to contain relevant information to the underlying dispute. Forman v. Henkin, 2018 NY Slip Op 01015 (February 13, 2018). Although Forman was a personal injury case, it opens the door to disclosure of “private” social media postings in commercial disputes.

Background

In Forman, the plaintiff alleged that she was injured when she fell from a horse owned by the defendant and suffered spinal and traumatic brain injuries. She claimed that as a result of the injury, she had difficulty using a computer and composing coherent messages after the accident and became reclusive. In discovery, the defendant sought unlimited access to the plaintiff’s “private” Facebook account (postings that could be viewed only by specific individuals identified by the plaintiff), contending that there would be information relevant to the plaintiff’s claims that she was unable to participate in certain activities and that the injury impacted her ability to read, write, and use a computer. The plaintiff, however, refused to provide unlimited access to the “private” social media posts.

The Court of Appeals Decision

After conflicting rulings from the trial court and then the Appellate Division, the Court of Appeals provided substantial access to plaintiff’s “private” Facebook postings. First, the Court set forth the standard to be applied in analyzing these type of disputes, holding that “there is no need for a specialized or heightened factual predicate to avoid improper ‘fishing expeditions’” with social media discovery. The Court reviewed New York’s discovery law including CPLR 3101(a) which directs that “[t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action.” The Court noted that this standard is to be interpreted “liberally” and the “statute 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.”

Although discovery in New York is broad, the Court held that there should not be a “one-size-fits-all rule” with respect to social media discovery. The trial courts should consider the nature of the litigation and determine whether relevant material is likely to be found in the private social media account at issue. Once the trial court considers those factors, it 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.”

Applying these standards to the facts of the case, the Court held that the trial court’s decision was appropriate here. The trial court had (1) directed the plaintiff to produce photographs of herself privately posted on Facebook after the accident that did not depict nudity or romantic encounters and (2) authorized defendant to obtain Facebook records showing the time each private message was posted along with the number of characters or words in the messages. The Court of Appeals noted that there was a basis to infer that posted photographs could be reflective of the plaintiff’s post-accident activities or limitations and the timing of the messages could be relevant to the claim that plaintiff was having difficulty composing messages. The Court of Appeals further found that the trial court exercised its discretion by excluding photographs depicting nudity and romantic encounters.

Lessons Learned

Although privacy settings on social media may initially prevent adversaries from gaining access to messages, photographs, and other personal information intended for a limited audience, these settings are not immune to court orders and the barrier to gain access to social media in civil litigation is relatively low. This issue will be especially relevant in commercial litigation discovery where disputes often arise between friends, family or employees who communicate through social media including family-owned businesses or other closely held corporations. Company owners and personnel should know that what they post and send on Facebook is now fair game for discovery even where it is only shared with friends. That, of course, means private communications intended only for friends can now be used against the posting party regardless of the identity of the intended recipient or the privacy settings.

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For more information on this topic, contact Vincent J. Syracuse at syracuse@thsh.com, Paul D. Sarkozi at sarkozi@thsh.com, or Carl F. Regelmann at regelmann@thsh.com.


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