On February 13, 2018, the New York Court of Appeals held that an individual’s private social media account receives no special protection from discovery. ((Forman v. Henkin, 30 N.Y.3d 656 (2018).)) In the case, Forman v. Henkin, the plaintiff fell off a horse and sued the owner of the horse for negligence. ((Id. at 1.)) The plaintiff claimed severe injuries including spinal damage, brain damage, memory loss, communication deficiencies, and social isolation. ((Id.)) The plaintiff’s Facebook account became the center of the case when “[a]t her deposition, plaintiff stated that she previously had a Facebook account on which she posted ‘a lot’ of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted.” ((Id.)) The plaintiff also stated that she could no longer use social media the way that she did before the accident because it could take her hours to write a simple message. ((Id.))
After the deposition, the defendant moved to compel the plaintiff’s entire private Facebook account, arguing that posts on Facebook would be material to claims that the accident harmed the plaintiff’s social life and communication abilities. ((Id.)) The plaintiff opposed the motion arguing that the defendant had no factual predicate to believe that discovery of the private Facebook was reasonably likely to provide relevant information because the single public profile picture did not contradict the plaintiff’s claims. ((Id.)) Over plaintiff’s protests, the trial court ordered the plaintiff to produce private Facebook records for all pre-accident photographs that she will use at trial, all post-accident photographs of herself that do not show nudity, and all post-accident documents showing the timestamps and number of words in each of the plaintiff’s private messages. ((Id. at 661.)) The plaintiff appealed to the New York Appellate Division, where the court modified the trial court’s order to include only photographs that the plaintiff will introduce at trial. ((Id.)) The defendant appealed to the New York Court of Appeals, requesting that the order of the trial court be restored. ((Id.))
In reinstating the trial court’s order, the Court unanimously held that the Appellate Division improperly applied a heightened standard that conditioned discovery of private social media on whether the defendant could point to public social media that contradicted the plaintiff’s claims. ((Id. at 664.)) The Court found such a standard unworkable because it “effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.” ((Id.)) Facebook, the Court explained, is not such a unique platform as to preclude application of well-established discovery principles to resolve a discovery dispute. ((Id. at 662.)) The Court explicitly stated that standard discovery rules apply to the discovery of private social media; that is, a discovery request must be reasonably calculated to seek production of information that is “material and necessary to the prosecution or defense of an action.” ((Id.)) In summarizing traditional principles of discovery, the Court articulated a two-prong test to determine the scope of private social media discovery requests: “[C]ourts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.” ((Id. at 666.)) Under this standard, the Court found the private posts directly relevant to the plaintiff’s injury claims, particularly her claims of social isolation and difficulty with writing emails. ((Id.)) The Court also deemed the trial court’s order to have properly balanced the plaintiff’s privacy interests because it excluded photographs of nudity and did not release the contents of any messages. ((Id.))
The profusion of social media has caused further litigants to request production of information that goes to an individual’s private life. Personal injury cases in which the claims involve loss of enjoyment of life or impairment of mental or physical capacity are the most susceptible to an extensive request for private social media. In addition to advising clients not to create unfavorable social media evidence, lawyers must be aware of the discovery obligations generated by social media usage. A lawyer’s obligation to tell a client that she must not destroy social media evidence rises to ethical dimensions. For example, litigants who use social media could face sanctions if they fail to preserve their social media posts. In most jurisdictions, the duty to preserve electronically stored information–such as social media content–arises when litigation is reasonably foreseeable. ((See, e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (holding that “[t]he duty to preserve attache[s] at the time that litigation [is] reasonably anticipated.”).)) Here, the plaintiff had a duty to preserve her social media when she fell off the horse because litigation was reasonably foreseeable then. She deactivated her Facebook presumably to avoid the creation of conflicting evidence, which is prudent. Conversely, if she had deleted her Facebook posts, she could have been sanctioned for destroying potentially relevant evidence.