Personal injury claimants routinely candidly discuss their personal injury travails and who might be responsible for those injuries on Facebook and other social media. They brazenly post photographs depicting exploits on jet skis, bicycles and other recreational equipment that serve to undermine their lawyer’s assertions of irreparable and disabling injury. How then can the defense obtain social media in discovery to defeat specious or exaggerated claims?
The difficulty of obtaining private social media information under New York state practice discovery rules is illustrated by Forman v. Hankin, 134 A.D.3d 529 (1st Dep’t 2015). Plaintiff Kelly Forman alleged that she sustained a serious brain injury as a result of falling off a horse, which left her unable to reason, find words, write or communicate effectively. The trial court acknowledged that photographs of plaintiff engaging in various activities after her accident, particularly activities she claimed she was no longer is able to engage in due to her fall, were of enormous probative value. Therefore, the court ordered her to produce any post-accident photographs on Facebook that did not depict nude or romantic encounters. Because of the cognitive injuries alleged, the trial court ordered plaintiff to provide an authorization to permit defendant to obtain records from Facebook, including archived or deleted records, showing each time plaintiff posted a private message and the number of characters or words in the text of each private message. Defendant was not permitted to obtain the content of the post-accident messages, but only a number or words or characters in the messages. Considering the allegations of injury, just being able to prove that plaintiff was using social media as a form of self-expression would be an accomplishment for the defense.
On appeal, the First Department modified the trial court’s order by vacating that portion of the order directing plaintiff to produce Facebook photographs she did not intend to introduce at trial and the authorization for Facebook records. Sadly, this ruling is consistent with rulings by other appellate courts in New York that require a defendant to make a threshold showing before permitting disclosure of social media no matter how compelling the need.
What then is the most effective strategy for defense counsel in New York to employ to obtain this information in light of Forman? First, the defendant must establish a prima facie showing of relevancy. At a minimum, this can only be accomplished by crafting a narrowly tailored request for information, such as a request limited to social media conversations concerning the claimed injuries. Alternatively, New York courts permit disclosure if defendant can establish that certain social media information contradicts the plaintiff’s claims. In Forman, the First Department held that the mere fact that plaintiff had posted pictures or sent messages did not sustain this burden. Defendant’s argument that the information sought could be relevant to rebut plaintiff’s claimed injuries was dismissed as a “fishing expedition”.
Correctly so, the dissent in Forman lambasted the majority’s requirement that a defendant only be permitted to obtain disclosure “if, and only if, the defendant can first unearth some item from plaintiff’s publically available social media postings that tends to conflict with or contradict the plaintiff’s claims.” This requirement presents defense counsel with a dilemma. If a defendant must produce for the court publically available information to establish a factual predicate to obtain private social media messages, how does defendant obtain that information in the first instance? Arguably, once a defendant has obtained publically available information undermining plaintiff’s claim, private social media disclosure may become superfluous.
What then are strategies that defense counsel can utilize to maximize the likelihood of obtaining discovery of private social media? First, it is axiomatic that a defense lawyer should search plaintiff’s name in as many social media platforms as possible to discover publically available information. For example, there are online search tools available to search for an individual twitter user’s history of tweets. Using these websites, defense counsel can insert the name of the product, the manufacturer of the product, and/or the particular type of product at issue into the search field and locate tweets, if any, referencing those terms.
Does the plaintiff post on a personal blog or message board? Certain message boards may be dedicated to the type of issues or damages being litigated. There may be online sites offering specifics relating to the claimant’s purported personal injury at issue in the litigation. Once information on a personal blog or message board is obtained, it may facilitate the drafting of a demand or a motion to require production of the requested private social media disclosure. Although it may take a little more effort than grinding out a form demand, a specifically tailored discovery request may have a greater likelihood of being upheld.
Finally, it is essential that defense counsel send a preservation letter to plaintiff’s counsel to avoid any altering of the privacy settings of the claimant’s social media profiles or otherwise taking down previously posted information.