New York Court of Appeals Rules on Social Media Discovery in Personal Injury Lawsuit

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In the recent unanimous decision of Forman v. Henkin, 2018 N.Y. Slip Op 01015 — a personal injury lawsuit wherein the plaintiff claimed spine and traumatic brain injuries after she fell from a horse owned by defendant, leading to cognitive deficits, memory loss, problems writing, and social isolation — the New York Court of Appeals ruled that private materials of a Facebook user are subject to discovery if they contain material relevant to the issues in controversy in litigation.

Kelly Forman said she became a recluse after suffering a spinal injury and brain damage, making it hard to read and write, in a June 2011 fall caused by Mark Henkin’s negligence in fitting her horse with a defective stirrup that broke. Forman testified during her deposition that she had a Facebook account to which she had posted pre-accident photographs, but that she had closed the account after the accident. Henkin moved to gain access to, among other things, the entirety of Forman’s private Facebook account, claiming that any photographs and messages she had posted to Facebook would contain information relevant to deposition testimony that she could no longer cook, travel, engage in sports, ride a horse, or go to the movies, and now had difficulty reading, writing, reasoning, and using a computer.

The Supreme Court granted Henkin’s motion, but limiting the disclosure to all photographs Forman had posted privately on Facebook before the accident which she intended to use at trial and all photographs of herself she had posted privately on Facebook after the accident, but excluding any photos which may have depicted nudity or romantic relationships. Upon Forman’s appeal, the Appellate Division, First Department limited the disclosure to photographs (pre-accident or post-accident) that Forman intended to use at trial.

The Court of Appeals reversed the Appellate Division and reinstated the order of Supreme Court, stating that, “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,” while “reject[ing] the notion that the account holders so‑called “privacy” settings govern the scope of disclosure of social media materials,” as “even private materials may be subject to discovery if they are relevant.” The court also cautioned that a personal injury lawsuit does not make a person’s entire social media data “automatically discoverable.”

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