WWBA September 2018 Newsletter

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September Litigation Tip ✦ SOCIAL MEDIA DISCOVERY REQUESTS Social media discovery requests are now commonplace in litigation. In Forman v Henkin, 30 NY3d 656 (2018), the Court of Appeals addressed a dispute in a personal injury action concerning disclosure of materials from plaintiff’s Facebook account. The decision reminds the bar of the rules regarding disclosure and the courts of the need for tailored court orders. In Forman, the Plaintiff claimed physical and cognitive injuries including to spinal injuries, traumatic brain injuries, difficulty writing and using a computer. She testified at deposition that she posted a lot of photographs prior to the accident showing her active lifestyle. Defendant sought an unlimited authorization to obtain Plaintiff’s entire “private” Facebook account, contending photographs and written postings would be material and necessary to his defense of the action under CPLR 3101(a). When Plaintiff failed to provide the authorization, the Defendant moved to compel. The lower court tailored an order permitting disclosure but limited it to all photographs privately posted prior to the accident intended to be used at trial, all photographs post-accident privately posted that do not depict nudity or romantic encounters, and records showing the time plaintiff posted private messages after the accident and number of words/characters in those messages. The Plaintiff appealed, and the appellate court modified in limiting the disclosure to certain photographs intended to be used at trial both pre and post-accident and eliminated the post-accident data requests. The appellate court granted leave for the Defendant to appeal. The Court reminded us that disclosure in civil actions in New York is generally governed by CPLR 3101(a), which directs: “[t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof.” This right to disclosure, although broad, is not unlimited. CPLR 3101 itself “establishes three categories of protected materials: privileged matter, attorney’s work product, and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship.” Further, pursuant to CPLR 3103(a) protective orders are available for the account holder, for example, for sensitive or embarrassing materials of marginal relevance. The Court of Appeals explained that rather than applying a one-size-fits-all rule, discovery requests “must be evaluated on a case-by-case basis with due regard for the strong policy supporting open disclosure.” The Court explained courts should first consider the nature of the event giving rise to the litigation and injuries claimed, as well as any other information specific to the case, to assess whether relevant information is likely to be found on the Facebook account. The Court agreed with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. (See Kregg v. Maldonado, 98 AD3d 1289 (4th Dept 2012). The Court further stated that for the purposes of disclosure the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information. The Court reversed the appellate court’s order and reinstated the lower court’s order. Written by Angela Morcone Giannini, Co-Chair, Litigation Committee Other Co-Chairs: Jacqueline Hattar & Kimberly Sheehan Westchester Women’s Bar Association News Page 9
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WWBA September 2018 Newsletter

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