Forman v. HenkinForman v. Henkin
Lead Opinion
Order, Supreme Court, New York County (Lucy Billings, J.), entered March 19, 2014, which, to the extent appealed from as limited by the briefs, granted defendant’s motion to compel to the extent of directing plaintiff to produce all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial, all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters, and authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages, modified, on the law and the facts, to vacate those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff’s private Facebook messages, and otherwise affirmed, without costs.
In this personal injury action, plaintiff alleges that while riding one of defendant’s horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent because, inter alia, he failed to properly prepare the horse for riding, and neglected to maintain and inspect the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.
Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she
CPLR 3101 (a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and reason” (Allen v Crowell-Collier Publ. Co.,
This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information. For example, in Tapp v New York State Urban Dev. Corp. (
Other Departments of the Appellate Division, consistent with well-established case law governing disclosure, have required
However, in accordance with standard pretrial procedures, plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial. Plaintiff concedes that she cannot use these photographs at trial without having first disclosed them to defendant.
We disagree with the dissent’s position that we should reconsider the well-settled body of case law, from both this Court and other Departments, governing the disclosure of
Contrary to the dissent’s view, this Court’s prior decisions do not stand for the proposition that different discovery rules exist for social media information. The discovery standard we have applied in the social media context is the same as in all other situations — a party must be able to demonstrate that the information sought is likely to result in the disclosure of relevant information bearing on the claims (see e.g. GS Plasticos Limitada,
Although we agree with the dissent that the discovery standard is the same regardless of whether the information requested is contained in social media accounts or elsewhere, we disagree with the dissent’s analysis as to how that standard should work in the personal injury context. According to the dissent, “[i]f a plaintiff claims to be physically unable to engage in activities due to the defendant’s alleged negligence, posted information, including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiff’s former or current activities or abilities will be discoverable.” This view, however, is contrary to our established precedent holding otherwise (see Pecile v Titan,
Taken to its logical conclusion, the dissent’s position would allow for discovery of all photographs of a personal injury plaintiff after the accident, whether stored on social media, a cell phone or a camera, or located in a photo album or file cabinet. Likewise, it would require production of all communications about the plaintiff’s activities that exist not only on social media, but in diaries, letters, text messages and emails. Allowing the unbridled disclosure of such information, based merely on speculation that some relevant information might be found, is the very type of “fishing expedition” that cannot be countenanced. Contrary to the dissent’s view, there is no analogy between the defense litigation tool of surveillance video and the wholesale discovery of private social media information. The surveillance of a personal injury plaintiff in public places is a far cry from trying to uncover a person’s private social media postings in the absence of any factual predicate.
The question of whether a court should conduct an in camera review of social media information is not presented on this appeal. The court below did not order an in camera review, nor do the parties on appeal request any such relief. Further, the dissent is mistaken that our prior decisions in this area require a court to conduct an in camera review in all circumstances where a sufficient factual predicate is established. The decision whether to order an in camera review rests in the sound discretion of the trial court, or in this Court’s discretion if we choose to exercise it (see Gottlieb v Northriver Trading Co. LLC,
Finally, plaintiff’s claim that the motion court erred in sua sponte ordering a physical and psychological examination of her is based on a misreading of the court’s decision. As defendant acknowledges, the court did not grant such relief, but merely referenced the previously scheduled examination discussed at oral argument. Concur — Moskowitz, Richter and Kapnick, JJ.
Notes
The fact that plaintiff deactivated her Facebook account is not a basis to conclude that relevant information is contained therein. In any event, in the motion papers below, defendant’s counsel conceded that he conducted a search of plaintiff’s public Facebook profile before she deactivated it and found nothing but an old picture of her.
Dissenting Opinion
dissent in a memorandum by Saxe, J., as follows: This appeal, concerning whether defendant is
Facts
Plaintiff Kelly Forman alleges that she was injured on June 20, 2011 while visiting defendant Mark Henkin in Westhampton. The two were on what was to be a leisurely horseback ride, when plaintiff fell off of the animal, allegedly due to negligence on the part of Henkin and his employees in failing to correctly tack up the saddle and providing faulty equipment. Plaintiff alleges serious and debilitating injuries, including traumatic brain injury and spinal injuries, causing cognitive deficits, memory loss, inability to concentrate, difficulty in communicating, and social isolation, severely restricting her daily life. Approximately five months later, she commenced this action.
In a written statement plaintiff provided to defendant at her deposition, she described the nature of her claimed physical, mental and psychological injuries. Among the assertions she made was that after the accident, her “social network went from huge to nothing.” At her deposition, plaintiff testified that before the accident she had maintained a Facebook page and had posted photographs showing her doing fun things, but that she deactivated her Facebook page some months after the accident (and after the commencement of this action), some time between June and August of 2012. She said that due to her current difficulties with memory, she could not recall the exact nature or extent of her Facebook activity from the time of the accident until she deactivated the account.
The court directed disclosure of any photographs posted after the accident which do not depict nudity or romantic encounters, along with any photographs posted before the accident that plaintiff intends to use at trial, as well as any private Facebook messages plaintiff sent after the accident, redacted so that the only information provided is the amount of characters and the time at which the message was sent. On plaintiffs appeal, the majority concludes that the direction for the disclosure of photographs and information about private messages must be vacated, in the absence of a factual predicate that contradicts or conflicts with plaintiff’s claims. We disagree with that approach to the subject, although it comports with our current case law.
Discussion
A few basic concepts about Facebook must be understood for this discussion (see generally Facebook, http://www. facebook.com/help [accessed July 21, 2015]). Every person who subscribes to Facebook has a “public page” containing information that the subscriber allows to be viewed by the general public, which may include content such as photographs, status updates, or shared links. Each subscriber may choose to make each piece of posted content publicly available, or may limit the posted content so that it can only be viewed by a more limited group, such as the individuals identified by the subscriber as “friends,” or a customized list of people. Subscribers can also use Facebook to send messages to other subscribers in a manner similar to text messaging. Those messages will not be visible to anyone not involved in them.
If a subscriber opts to deactivate his or her Facebook page, that person’s page is no longer viewable. However, deactivating one’s Facebook page does not erase the information that was previously posted there. Instead that information remains pres
Over the past few years, as social networking sites have become increasingly ubiquitous, courts across the country have adopted a variety of approaches to discovery of social media accounts (see generally Rick E. Kubler and Holly A. Miller, Recent Developments in Discovery of Social Media Content, ABA Section of Litigation, Insurance Coverage Litigation Committee CLE Seminar, available at http://www.americanbar.org/content/ dam/aba/administrative/litigation/materials/2015_ inscle_materials/written_materials/24_l_recent_developments_ in_discovery_of_social_media_content.authcheckdam.pdf [accessed Sept. 28, 2015]). It is clear that “discovery of social networking information is a developing body of jurisprudence” (Mallory Allen & Aaron Orheim, Get Outta My Face[book]: The Discoverability of Social Networking Data and the Passwords Needed to Access Them, 8 Wash J L Tech & Arts 137, 152 [2012]).
The case law that has emerged in this state in the last few years regarding discovery of information posted on personal social networking sites holds that a defendant will be permitted to seek discovery of the nonpublic information a plaintiff posted on social media, if, and only if, the defendant can first unearth some item from the plaintiffs publicly available social media postings that tends to conflict with or contradict the plaintiffs claims. Even if that hurdle is passed, then the trial court must conduct an in camera review of the materials posted by the plaintiff to ensure that the defendant is provided only with relevant materials.
The first New York State appellate case considering a demand for the contents of a plaintiffs Facebook account was issued by the Fourth Department in 2010, affirming the denial of the defendant’s motion for such an authorization (McCann v Harleysville Ins. Co. of N.Y.,
The Fourth Department elaborated on the point in Kregg v Maldonado (
In Tapp v New York State Urban Dev. Corp. (
Even where some factual predicate for the disclosure of information posted on social media is established, this Court has required that an in camera review be performed so that the defendant is not made privy to non-relevant content. This procedure was imposed in Patterson v Turner Constr. and the recent case of Spearin v Linmar, L.P. (
In Spearin, the plaintiff’s public profile picture from his Facebook account, uploaded after his accident, depicted the plaintiff sitting in front of a piano, which tended to contradict his testimony that, as a result of the claimed accident he could longer play the piano (id. at 528). Even so, this Court modified an order that required the plaintiff to provide an authorization for access to his Facebook account; we required, instead, an in camera review of the plaintiff’s post-accident Facebook postings for identification of information relevant to the plaintiff’s alleged injuries (id.). The Second Department ruled similarly in Richards v Hertz Corp. (
The procedure created by these cases, by which a defendant may obtain discovery of nonpublic information posted on a social media source in a plaintiffs control only if that defendant has first found an item tending to contradict the plaintiffs claims, at which time the trial court must conduct an in camera review of all the items contained in that social media source, imposes a substantial — and unnecessary — burden on trial courts. As one Suffolk County justice has observed, “in camera inspection in disclosure matters is the exception rather than the rule, and there is no basis to believe that plaintiffs’ counsel can not honestly and accurately perform the review function” (Melissa G v North Babylon Union Free Sch. Dist.,
Moreover, as the numbers of people who maintain social networking site accounts increase over time, there will be a commensurate increase in the burden on the trial courts
Moreover, the extra burden is clearly unnecessary since the procedure we are currently employing stands in marked contrast to the standard discovery procedure in civil litigation generally.
All discovery issues in this state are controlled by CPLR 3101 (a), which provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The term “material and necessary” has long been interpreted liberally in New York, “to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial” (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Anonymous v High School for Envtl. Studies,
It is true that the law does not allow “fishing expeditions,” that is, the use of a disclosure demand based solely on “hypothetical speculations” (Manley v New York City Hous. Auth.,
Of course, the statute creates exceptions for privileged matter, attorney’s work product, and materials prepared in anticipation of litigation (see CPLR 3101 [b], [c], [d] [2]); but, beyond such statutory protections, “if nothing unusual can be shown to invoke the court’s protective order powers under CPLR 3103 (a), as with a showing that the disclosure devices are being used for harassment or delay, the party is entitled to
In accordance with the foregoing, generally, in a personal injury action, a defendant may serve on a plaintiff a notice to produce tangible documents or other items in the plaintiff’s possession or control, describing the type of content that is relevant to the claimed event and injuries. Assuming that the demand is sufficiently tailored to the issues, and unless a claim of privilege is made, normally the plaintiff must then search through those items to locate any items that meet the demand, and provide those items. There is not usually a need for the trial court to sift through the contents of the plaintiff’s filing cabinets to determine which documents are relevant to the issues raised in the litigation.
One federal magistrate judge provided a cogent analysis of why the rule our courts have adopted regarding discovery from social media accounts should be changed, and a traditional approach used instead: “Some courts have held that the private section of a Facebook account is only discoverable if the party seeking the information can make a threshold evidentiary showing that the plaintiff’s public Facebook profile contains information that undermines the plaintiff’s claims. This 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. The Federal Rules of Civil Procedure do not require a party to prove the existence of relevant material before requesting it. Furthermore, this approach improperly shields from discovery the information of Facebook users who do not share any information publicly. For all of the foregoing reasons, the Court will conduct a traditional relevance analysis” (Giacchetto v Patchogue-Medford Union Free Sch. Dist., 293 FRD 112, 114 n 1 [ED NY 2013] [emphasis added and citations omitted]).
There is no reason why the traditional discovery process cannot be used equally well where a defendant wants disclosure of information in digital form and under the plaintiff’s control,
There is no particular difficulty in applying our traditional approach to discovery requests for information posted on social networking sites. If a plaintiff claims to be physically unable to engage in activities due to the defendant’s alleged negligence, posted information, including photographs and the various forms of communications (such as status updates and messages) that establish or illustrate the plaintiffs former or current activities or abilities will be discoverable. If a plaintiff’s claims are for emotional or psychological injury, it may be more difficult to frame a discovery demand, but it can certainly be done without resorting to a blanket demand for everything posted to the account (see e.g. Giacchetto, 293 FRD at 112; Equal Empl. Opportunity Commn. v Simply Storage Mgt., LLC, 270 FRD 430 [SD Ind 2010]).
Using the approach I suggest would also obviate the need for the awkward and questionable procedure adopted by the motion court in this matter with regard to posted messages; the order on appeal allowed defendant access to only the number of characters per message and the time each was sent on plaintiffs Facebook page, but not the content. If the traditional approach to discovery were applied to posted messages, they could be treated exactly as any other letter, notice or document.
Of course, categorizing posted material as “private” does not constitute a legitimate basis for protecting it from discovery. There can be no reasonable expectation of privacy in communications that have reached their intended recipients (see United States v Lifshitz,
Nor should it matter that the account was “deactivated,” since apparently a deactivated account may easily be “reactivated,” thereby giving the subscriber access to the previously posted material (see generally Facebook, http://www. facebook.com/help [accessed July 21, 2015]). An authorization for the site itself to provide posted content would be necessary only if previously posted materials became inaccessible to the subscriber.
The majority suggests that the doctrine of stare decisis precludes us from altering our previous rulings. However, in my view this so-called “well-settled body of case law” is not so long-established that it is deserving of immutable stare decisis treatment. “[T]he relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned” (Montejo v Louisiana,
In addition to relying on stare decisis, the majority concludes that there is no need to “alter the existing legal framework.” Little is said about how the existing decisions have unfairly created a rule of judicial protectionism for the digital messages and images created by social networking site users, in contrast to how discovery of tangible documents is treated under the CPLR.
In this context — the area where litigation and social media converge — it is important to keep in mind that in recent years social media profiles have become virtual windows into subscribers’ lives. The breadth of information posted by many people on a daily basis creates ongoing portrayals of those individuals’ lives that are sometimes so detailed that they can rival the defense litigation tool referred to as a “day in the life” surveillance video. And, just as “day in the life” videos are a staple of tort practice (see Ken Strutin, The Use of Social Media in Sentencing Advocacy; Technology Today, NYLJ, Sept. 28, 2010 at 5, col 1), the contents of a self-made portrait of a plaintiff’s day-to-day life may contain information appropriate for discovery in personal injury litigation.
It is also possible for an account to be permanently deleted, an option not relevant to this discussion, but which could, in certain circumstances, lead to a spoliation claim (see Gatto v United Air Lines, Inc.,