Court of Appeals Establishes Guidelines for Disclosure Disputes involving Social Media Materials.

In Forman  v. Henkin, __NY3d__ (2018), a personal injury case, the Court of Appeals rejected the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials. It agreed with other courts that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. It held that rather than applying a one-size-fits-all rule, courts addressing disputes over the scope of social media discovery should employ well-established rules, there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court 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.

The Court noted that in a personal injury case it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate, for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.

The Court observed that to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

Plaintiff suggested that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. The Court assumed for purposes of resolving the narrow issue before it that some materials on a Facebook account may fairly be characterized as private. It indicated that even private materials may be subject to discovery if they are relevant. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.