First Department:  Fearing Fishing Expedition By Defendants

Facebook Photos Shielded From Discovery

As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent case concerning discoverability of social media information.

With the widespread use of social media today, defendants in personal injury actions are very interested in a plaintiff’s social media activity. Where a plaintiff claims that they are unable to engage in activities due to an accident, defendants have sought to find evidence to the contrary on the plaintiff’s social networking pages. Over the years this has produced a predictable number of rulings which have set forth boundaries concerning the discoverability of social media activity by a plaintiff. A recent case in the First Department demonstrates the tension between the desire for defendants to obtain information to refute a plaintiff’s claims and the plaintiff’s desire to shield their social activity from view.

In Forman v. Henkin, the plaintiff was injured while visiting the defendant in Westhampton. The two were on a horseback ride when the plaintiff fell off of the horse allegedly due to the negligence of the defendant, in failing to correctly tack up the saddle and providing faulty equipment. Plaintiff alleged serious injuries including traumatic brain injury, spinal injuries, memory loss and the ability to concentrate, difficulty in communication and social isolation, severely restricting her family life. At her deposition, the plaintiff testified that she maintained and posted a Facebook account prior to the accident but deactivated the account at some point thereafter. In a statement that she made she asserted that her “social network went from huge to nothing”, and plaintiff testified at her deposition that before the accident she had maintained a Facebook page and posted photographs showing her “doing fun things” but that she deactivated it some months afterwards.

Plaintiff testified that due to her current memory loss, she could not recall the exact nature or extent of her Facebook activity from the time of the accident until she deactivated the account. Defendant demanded an authorization to obtain the plaintiff’s Facebook records, unlimited in time and scope. The plaintiff objected and when the issue was raised in a motion, the defendant argued that the requested material was necessary as it was relevant to the issue of the plaintiff’s credibility. The plaintiff opposed the motion arguing that the defendant had not shown that the requested material was reasonably calculated to result in the disclosure of relevant and material evidence.

Plaintiff argued that the defendant was only speculating that the materials posted in her Facebook account of the accident contained such evidence. The lower court directed disclosure of any photographs posted after the accident along with photographs posted before the accident plaintiff intended to use as well as any private Facebook messages plaintiff sent after the accident. The plaintiff appealed to the First Department. The First Department reversed.

The First Department reiterated what is now settled case law that requires some threshold activity before the Court will allow access to a parties private social media information. The mere facts that a plaintiff uses Facebook or that information in the plaintiff’s social media site might contradict the plaintiff’s claims are not a proper basis for disclosure.    Applying these principles, the Appellate Division overruled the lower court. The First Department found that the defendants failed to establish an entitlement to either plaintiff’s private Facebook photographs or information about the times and lengths of her Facebook messages. The fact that the plaintiff previously used Facebook to post pictures of herself or send messages, the Court found was insufficient to warrant discovery of this information.  The First Department also found that the allegation that the requested information might be relevant to rebut plaintiff’s claims of injury or disability was not a proper basis for requiring access to the plaintiff’s Facebook accounts.

In a strong decent, Justice Saxe noted that the assertion that plaintiff made that her “social media network went from huge to nothing” and her claim that she had posted photographs before the accident and had deactivated her account afterwards because of her injuries, should have provided a sufficient basis for the discovery of the plaintiff’s Facebook information. Justice Saxe also called upon the First Department to revisit its prior rulings on this issue given the prevalent use of social media now.

Clearly, the balance is tipped in favor of plaintiffs who can shield their social media activity while pursuing a lawsuit. Although defendants often suspect that the plaintiff’s social activity will contract their claims, unless the defendant can establish some predicate, their social medical activity will be unfairly hidden.

Should you have any questions, please call.

Thomas M. Bona