Kelly Forman, Respondent, v. Mark Henkin, Appellant.
2018 NY Slip Op 01015 [30 NY3d 656]
Court of Appeals of the State of New York
February 13, 2018
30 N.Y.3d 656 | 93 N.E.3d 882 | 69 N.Y.S.3d 512
DiFiore, Ch. J.
Publishеd by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 28, 2018
Forman v Henkin, 134 AD3d 529, reversed.
Chief Judge DiFiore.
In this personal injury action, we are asked to resolve a dispute concerning disclosure of materials from plaintiff‘s Facebook account.
Plaintiff alleges that she was injured when she fell from a horse owned by defendant, suffering spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. At her deposition, plaintiff stated that she previously had a Facebook account on which she posted “a lot” of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. She maintained that she had become reclusive as a result of her injuries and also had difficulty using a computer and compоsing coherent messages. In that regard, plaintiff produced a document she wrote that contained misspelled words and faulty grammar in which she represented that she could no longer express herself the way she did before the accident. She contended, in particular, that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.
Defendant sought an unlimited authorization to obtain plaintiff‘s еntire “private” Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action under
Plaintiff opposed the motion arguing, as relevant here, that defendant failed to establish a basis for access to the “private” portion of her Facebook account because, among other things, the “public” portiоn contained only a single photograph that did not contradict plaintiff‘s claims or deposition testimony. Plaintiff‘s counsel did not affirm that she had reviewed plaintiff‘s Facebook account, nor allege that any specific material located therein, although potentially relevant, was privileged or should be shielded from disclosure on privacy grounds. At oral argument on the motion, defendant reiterated that the Facebook material was reasonably likely to provide evidence relevant to plaintiff‘s credibility, noting for example that the timestamps on Facebook messages would reveal the amount of time it takes plaintiff to write a post or respond to a message. Supreme Court inquired whether there is a way to produce data showing the timing and frequency of messages without revealing their contents and defendant acknowledged that it would be possible for plaintiff to turn over data of that type, although he continued to seek the content of messages she posted on Facebook.
Supreme Court granted the motion to compel to the limited extent of directing plaintiff to produce all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do 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 messages (2014 NY Slip Op 30679[U] [2014]). Supreme Court did not order disclosure of the content of any of plaintiff‘s written Facebook posts, whether authored before or after the accident.
Although defendant was denied much of the disclosure sought in the motion to compel, only plaintiff appealed to the Appellate Division.1 On that appeal, the Court modified by limiting disclosure to photographs posted on Facebook that
Disclosure in civil actions is generally governed by
The right to disclosure, although broad, is not unlimited.
In addition to these restrictions, this Court has recognized that “litigants are not without protection against unnecеssarily onerous application of the discovery statutes. Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party” (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998] [citations and internal quotation marks omitted]; see
Here, we apply these general principles in the context of a dispute over disclosure of social media materials. Facebook is a
On appeal in this Court, invoking New York‘s history of liberal discovery, defendant argues that the Appellate Division erred in employing a heightened threshold for рroduction of social media records that depends on what the account holder has chosen to share on the public portion of the account. We agree. Although it is unclear precisely what standard the Appellate Division applied, it cited its prior decision in Tapp v New York State Urban Dev. Corp. (102 AD3d 620 [1st Dept 2013]), which stated: “To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff‘s Facebook account—that is, information that ‘contradicts or conflicts with plaintiff‘s alleged restrictions, disabilities, and losses, and other claims’ ” (id. at 620 [emphasis added]). Several courts applying this rule appear to have conditioned discovery of material on the “private” portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party‘s allegations in some respect (see e.g. Spearin v Linmar, L.P., 129 AD3d 528 [1st Dept 2015]; Nieves v 30 Ellwood Realty LLC, 39 Misc 3d 63 [App Term, 1st Dept 2013];
Before discovery has occurred—and unless the parties are already Facebook “friends“—the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account. Thus, a threshold rule requiring that party to “identify[ ] relevant information in [the] Facebook account” effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the materials on the public portion of the account.4 Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible—and not, as it should, on whether it is “material аnd necessary in the prosecution or defense of an action” (see
New York 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. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. In many if nоt most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder‘s so-called “privacy” settings govern the scope of disclosure of social media materials.
That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party‘s entire Facebоok account automatically
Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our 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. In a personal injury case such as this 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. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see
Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We
Applying these principles here, the Appellate Division erred in modifying Supreme Court‘s order to further restrict disclosure of plaintiff‘s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial.6 With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of shоwing that plaintiff‘s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff‘s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the acсident might be reflective of her post-accident activities and/or limitations. The
In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiff‘s claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, рarticularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant‘s failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, hоw the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials.7
In sum, the Appellate Division erred in concluding that defendant had not met his threshold burden of showing that the materials from plaintiff‘s Facebook account that were ordered to be disclosed pursuant to Supreme Court‘s order were reasonably calculated to contain evidence “material and necessary” to thе litigation. A remittal is not necessary here because, in opposition to the motion, plaintiff neither made a claim of statutory privilege, nor offered any other specific reason—beyond the general assertion that defendant did not meet his threshold burden—why any of those materials should be shielded from disclosure.
Accordingly, the Appellate Division order insofar as appealed from should be reversed, with costs, the Supreme Court order reinstated and the cеrtified question answered in the negative.
Judges Rivera, Stein, Fahey, Garcia, Wilson and Feinman concur.
Order insofar as appealed from reversed, with costs, order of Supreme Court, New York County, reinstated and certified question answered in the negative.
Notes
“[t]his approach can lead to results that are both too broad and too narrow. On the one hand, a plaintiff should not be required to turn over the private section of his or her Facebook profile (which may or may not contain relevant information) merely because the public section undermines the plaintiff‘s claims. On the other hand, a plaintiff should be required to review the private section and produce any relevant information, regardless of what is reflected in the public section . . . Furthermore, this аpproach improperly shields from discovery the information of Facebook users who do not share any information publicly” (Giacchetto v Patchogue-Medford Union Free Sch. Dist., 293 FRD 112, 114 n 1 [ED NY 2013]).