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NY Appellate Court Holds Privacy Settings Do Not Govern Scope of Social Media Disclosures

Posted on March 12th, 2018

In Forman v. Henkin, No.1, (N.Y. Feb. 13, 2018), Kelly Forman (“Plaintiff”) injured herself when she fell from a horse owned by Mark Forman (“Defendant”).  Defendant wanted access to Plaintiff’s entire Facebook account, saying the photographs and written postings would be material and necessary to his defense.  Plaintiff failed to comply. Defendant moved to compel.  The trial court ordered Plaintiff to give Defendant pre-accident photos, and post-accident photos and records of her messages after the accident. The appeals court limited discovery of the photos to those intended for trial, saying the Defendant was not permitted to go on a fishing expedition through Plaintiff’s private photos.

Defendant appealed, arguing that the court erred in using a threshold for production of social media records that depended on what the account holder chose to share on the public portion of the account. The court agreed.

Before discovery has occurred — and unless the parties are already Facebook friends — the party seeking disclosure may view only the materials the account holder has posted on the public part of the account. Under that approach, disclosure is based on whether the information is already accessible — and not, as it should, on whether it is material and necessary to the prosecution or defense of an action.

New York discovery rules do not require that the items a party seeks actually exist but rather that the request be appropriately tailored to yield relevant information. Discovery is supposed to determine if material relevant to a claim or defense exists. Therefore, this Court rejects the idea that privacy settings govern the scope of disclosure of social media materials.

Plaintiff suggests that disclosure of social media materials constitutes an unjustified invasion of privacy.  The Court agrees that some materials on a Facebook account may be private. But even private materials may be subject to discovery if they are relevant. Therefore, this Court reverses the Appellate Division order and reinstates the lower court order.

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