Those who thought designating social media posts as “private” would be sufficient to shield them from outsiders—including opposing parties in litigation—had better think again. On February 13, 2018, the New York Court of Appeals, New York’s highest court, unanimously held that the rules generally applicable to discovery in civil actions are just as applicable to “private” social media posts, and that they are therefore subject to disclosure if they are “reasonably calculated to contain evidence ‘material and necessary’ to the litigation.”  Forman v. Henkin, New York State Court of Appeals, No. 1 (quoting N.Y. C.P.L.R. 3101(a)).

In Forman, the plaintiff alleged that the defendant was negligent in  equipping a horse for riding and that she suffered physical and cognitive injuries as a result of a fall from the horse. During her deposition, the plaintiff testified that she had engaged in an active lifestyle before the accident, evidenced by photographs posted to her Facebook account, but that after the accident she could no longer engage in those activities. She also averred that after the accident she had become reclusive and had difficulty using a computer and composing coherent messages. Based on those statements, the defendant sought authorization to obtain plaintiff’s entire Facebook account—including posts the plaintiff had designated as “private”—contending that the photographs and written posts would be material and necessary to the defense of the action. When plaintiff refused to provide such authorization, the defendant moved to compel.

The trial court granted the motion to compel to the limited extent of directing plaintiff to produce (i) all pre-accident photographs of herself privately posted on Facebook that she intended to introduce at trial, (ii) all post-accident photographs of herself privately posted on Facebook that did not depict nudity or romantic encounters, and (iii) authorization for defendant to receive Facebook records concerning data related to the frequency and length of plaintiff’s posts, which were relevant to plaintiff’s claim that after the injury it would take her several hours to write a simple email.

On appeal, the intermediate appellate court, the Appellate Division, First Department, modified the trial court’s order by limiting disclosure to photographs that plaintiff intended to introduce at trial (whether pre- or post-accident), and jettisoning the portion of the trial court’s order permitting defendant to obtain data relating to plaintiff’s post-accident posts. In reaching its decision, the appellate court cited its prior decision in Tapp v. New York State Urban Dev. Corp., 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.”  The intermediate appellate court nonetheless granted defendant leave to appeal to the Court of Appeals.

The State’s highest court reversed, finding that the “Appellate Division [had] erred in employing a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account.” It explained that “a threshold rule requiring the party [seeking disclosure] to identify relevant information in the Facebook account [would] allow[] the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.” Rather, the Court held that New York’s “well-established rules”—which require courts to “consider the nature of the event giving rise to the litigation [and] the injuries claimed” when crafting an order that allows a party access to relevant materials while preventing disclosure of non-relevant and potentially private materials—were adequate to address the dispute. Applying those rules, the Court held that “given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs . . . posted after the accident might be reflective of [plaintiff’s] post-accident activities and/or limitations,”  and that “it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitivie injuries that caused her to have difficulty writing and using the computer.” Accordingly, the Court reinstated the trial court’s order granting defendant’s motion to compel in the manner the trial court had prescribed.

Importantly, the Court of Appeals stopped well short of authorizing unfettered access to an opposing party’s social media accounts, “reject[ing] the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable.” Rather, requests for and orders directing the disclosure of social media posts, like the disclosure of all other materials, must be “appropriately tailored and reasonably calculated to yield relevant information.”

With this decision, New York’s social media discovery jurisprudence better aligns with federal case law adjudicating disputes under Federal Rule of Civil Procedure 26, which also generally permits discovery of social media posts so long as the materials requested are relevant to any party’s claim or defense and proportional to the needs of the case.