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March 2018

Marking a Facebook Post “Private” is No Shield from Disclosure in New York State

The New York State Court of Appeals, the highest court in the state, in a recent unanimous opinion written by Chief Judge Janet DiFiore, held that the defendant Mark Henkin (“Henkin”) was entitled to the production of certain portions of the Facebook account of the plaintiff Kelly Forman (“Forman”), despite Forman’s having marked them as “private.”  Forman v. Henkin, 2018 NY Slip Op 01015, 2018 N.Y. Lexis 180 (Feb. 13, 2018). 

Facts and Procedural History

The underlying case was a personal injury action arising from a horseback riding accident.  Forman alleged that she suffered traumatic brain and spinal injuries when she fell from a horse owned by Henkin and that those injuries caused cognitive deficits, memory loss, communication difficulties (oral and written), and social isolation.  In support of her claims, Forman proffered evidence that her pre-accident lifestyle was very active, depicted in part by the many photographs she had posted on Facebook.  Six months after the accident, however, Forman deactivated her Facebook account and testified that she could not recall whether she had posted any post-accident photographs.  Forman also produced a document, which purportedly took her an exorbitant amount of time to compose and even so, contained errors in spelling and grammar.  Her contention was that the injuries had caused her to become a recluse because she could no longer communicate as she had before the accident.

The dispute in the trial court arose when Henkin sought all of the contents of even the private portions of Forman’s Facebook account.  As might be expected, Forman objected, and Henkin moved to compel.  In support of his motion, Henkin argued that the material sought was relevant to the issues of the scope of Forman’s injuries and her credibility.  Since Forman alleged that her prior active lifestyle, which she admittedly depicted on Facebook, had been drastically diminished by her injuries, Henkin maintained that Forman’s Facebook account could contain relevant evidence concerning her activities and ability to communicate, both before and after the accident.

Forman’s opposition to the motion to compel before the trial court was based, in part, upon Tapp v. New York State Urban Development Corp., 102 A.D.3d 620 (1st Dep’t 2013) and its progeny.  Courts following the Tapp rule would require the party seeking disclosure to demonstrate that there was material in the “public” portion of the Facebook account that tended to contradict the opposing party’s allegations before permitting discovery of material marked “private.”

The trial court granted Henkin’s motion to compel, in part.  Specifically, the court ordered Forman to produce: (1) photographs of herself privately posted prior to the accident at issue, which she intended to introduce at trial; (2) photographs of herself privately posted after the accident, provided that they did not depict nudity or romantic encounters; and (3) an authorization for records of her private messages posted after the accident, including each time such a private message was posted and the number of characters or words in the message.  Forman (and notably not Henkin) appealed to the intermediate appellate court (Appellate Division, First Department) to narrow or eliminate the required disclosure.  The First Department, over a strong dissent, modified the order below and limited the disclosure to only those photographs Forman posted on Facebook (whether pre- or post-accident) that she intended to use at trial.  Henkin was granted leave to appeal to the Court of Appeals.

The Court of Appeals Decision

The Court of Appeals reversed the Appellate Division and reinstated the trial court’s original order.  In so doing, it drew upon the broadly applicable Section 3101 of the New York Civil Practice Law and Rules (“CPLR”) and invoked “New York’s history of liberal discovery.”  The Court rejected the Tapp threshold rule, explaining that it “allow[ed] the [adverse] account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.”  Moreover, since Forman would likely not introduce at trial any Facebook content tending to contradict her allegations, the Court found that the Appellate Division, by so limiting disclosure, effectively denied Henkin the ability to discover any evidence possibly supportive of his defense.  

On the other hand, the Court held that the mere commencement of an action did not render a party’s entire Facebook account automatically discoverable.  Rather, the Court found that for the purposes of disclosure, “the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”  In other words, social media materials are generally subject to the same liberal disclosure standards as all other forms of discovery.  As the Court put it:  “While Facebook — and sites like it — offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”  The Court identified certain balancing factors to consider, including:

  • the nature of the event giving rise to the litigation, the damage claimed, and any other relevant information specific to the case.
  • whether an order can be tailored to the particular controversy so that it identifies what must be disclosed, while avoiding disclosure of non-relevant materials.  This can include temporal restrictions and limitations on sensitive or embarrassing materials.

Based on the facts presented, the Court found that Henkin had “more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”  This was based on Forman’s own testimony of the difference between her lifestyle and abilities before and after the accident, her admitted practice of posting many pictures and messages on Facebook, and the reasonable inference that the post-accident materials could be reflective of her post-accident activities and/or limitations.  Moreover, the trial court took steps to exclude photographs showing nudity or romantic encounters, which showed that it tailored the order as needed to avoid undue embarrassment.

What Does This Decision Mean For You?

The breadth of the application of the Forman decision to future cases, in differing areas of law, remains to be seen.  The opinion itself, however, offers some clues.  Most notably, the scope of the decision was limited by the fact that the party seeking disclosure (Henkin) did not cross-appeal and sought no affirmative relief from the intermediate appellate court.  Because the trial court’s order did not provide access to the content of the Facebook written messages (only the timing and number of characters/words), the Court of Appeals could not, given Henkin’s failure to appeal, formally consider that portion of the order.  Another issue the parties failed to brief, and therefore the Court could not consider on appeal, was the applicability of CPLR 3101(i).  That subsection provides, in pertinent part, that “there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a [party and that there] shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use.” The Court noted, at least three different times in its opinion, that it was limited in its ability to address all of the issues because of the scope of the appeal and, in so doing, gave the distinct impression that it wanted to go further.

Moreover, although the case at issue was one for personal injury/tort, the Court’s standard did not rest on that fact.  Rather, the Court relied on general principles of liberal discovery and made clear that as long as there were some showing that the materials requested were reasonably likely to lead to the discovery of admissible evidence, disclosure was appropriate.  Accordingly, this case should prove useful to parties and attorneys in all kinds of cases.  Readers should expect to see a surge of decisions addressing this discovery issue in the future.

David J. Grech
Diane Krebs


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