[Social Media, Facebook] Court Rules that Facebook Privacy Settings Should Not Impact Discoverability of Relevant Communications and Photographs

New York Court of Appeals – photo by UpstateNYer – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=6685704

There was an important social media decision from New York State’s highest court – the New York Court of Appeals – yesterday. The case, Forman v. Henkin (2018 WL 828101, NY February 13, 2018) rejected the heightened “factual predicate” standard which some lower courts had adopted for social media in favor of the general test of discoverability. “[T]here is nothing so novel about Facebook materials that precludes application of New York’s longstanding disclosure rules[.]” Accordingly, at least in New York, it should be relatively easier to obtain a person’s social media materials moving forward.

As the Forman decision explains, New York’s “factual predicate” standard conditioned discovery of material on the “private” portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party’s allegations in some respect.  The problem with this rule is that “disclosure turns on the extent to which some of the information sought is already accessible – and not, as it should, on whether it is ‘material and necessary to the prosecution or defense of an action.’” Under this approach, if a party’s account was fully private, opposing counsel could not establish a factual predicate and therefore had essentially no way of obtaining anything from social media.

In no unclear terms, the Court of Appeals rejected this social media specific analysis. “[T]here is no need for a specialized or heightened factual predicate.” Instead, the court employed the traditional test of discoverability, i.e., “the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Under this approach, the Court ultimately ordered plaintiff to exchange photographs and postings from her Facebook account. The Court reasoned that since plaintiff claimed to have been unable to live as active as a lifestyle following her horseback riding accident, defendant’s request for these social media materials was “reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident…”

IMPLICATIONS

Merely because your Facebook privacy settings are set to private that does not mean that your communications and photographs are  immune from legal discovery. As long as the materials may be “reasonably calculated to contain relevant information,” they may be discoverable.

Many thanks to contributing author, Daniel E. Lust, Esq., an associate at the law firm of Wilson Elser Moskowitz Edelman & Dicker LLP.