The New York Court of Appeals gave defense counsel in personal injury cases a Valentine’s Day present when it ruled, on February 13, 2018, that discovery under the New York Civil Practice Law and Rules (CPLR 3101 (a)) required the disclosure of certain “private” information that had been posted on a plaintiff’s Facebook account because it was reasonably calculated to contain evidence “material and necessary” to the litigation and ordered the information produced. Forman v. Henkin, New York Court of Appeals, Number 1 (2018).
The case involved claims for personal injury by a plaintiff who alleged that she was injured when she fell from a horse owned by the defendant, resulting in claimed spinal and traumatic brain injuries, cognitive defects, memory loss, difficulties with written and oral communication, and social isolation. The plaintiff had maintained a Facebook account in which she admitted she had posted a lot of photographs showing her pre-accident lifestyle, but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. Part of her claim included a contention that writing a simple email could take hours because she had to go over written material several times to make sure it made sense, due to her cognitive impairment.
The defendant sought unlimited authorization to obtain the plaintiff’s entire “private” Facebook account, claiming that photographs and written postings would be material and necessary to his defense under CPLR 3101 (a). Plaintiff refused to provide the information and the defendant moved to compel, arguing that the Facebook material was relevant to the scope of the plaintiff’s injuries. The trial court granted the motion to compel to the limited extent of directing plaintiff to produce photographs of herself privately posted on Facebook prior to the accident that she intended to introduce at trial, as well as all photographs of herself privately posted after the accident, which did not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the message.
The plaintiff appealed and the Appellate Division reversed, 3 to 2, limiting the disclosure only to photographs which had been posted on Facebook which the plaintiff intended to introduce at trial. Interestingly, the defendant did not cross-appeal with regard to the content of plaintiff’s written Facebook posts.
On February 13, 2018, the New York Court of Appeals reversed the Appellate Division ruling and reinstated the decision of the trial court. Invoking New York’s history of liberal discovery, the Court of Appeals held that the defendant had more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence, particularly given plaintiff’s contention that prior to the accident, she had posted a lot of photographs showing her active lifestyle. The defendant’s request for post-incident photographs, the court found, was reasonably calculated to lead to evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. Moreover, the court noted that the request was limited in temporal scope because the plaintiff had deactivated her Facebook account six months after the accident. Tempering this ruling, the Court of Appeals specifically held that the mere commencement of a personal injury action did not render an entire Facebook account discoverable, holding that directing disclosure of the entire account would be “comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation” and that such an order would be likely to yield much non-relevant and non-discoverable information. Interestingly, the court also noted that data revealing the timing, and the number of characters of posted messages was also relevant to plaintiff’s claim that she suffered cognitive injuries. However, because the defendant had not cross-appealed with regard to the trial court’s refusal to allow access to the content of messages, the Court of Appeals did not reach the issue of whether disclosure of the actual messages would have been appropriate.
This case is important not only because it is a pronouncement by New York’s highest and most respected court but also because litigation concerning the disclosure of social media information, particularly “private” Facebook entries and photographs, can be highly useful in the defense of a personal injury case. Given the prestigious nature of New York’s highest court, it seems likely many other courts will follow this ruling.