First Department Limits Facebook Discovery in Personal Injury Case

Forman v. Henkin, 2015 NY Slip Op 09350 (App. Div. 1st Dept. Dec. 17, 2015), decided by the First Department on December 17, 2015, represents yet another data point in an evolving body of case law assessing whether a party to litigation is entitled to the other side’s social media postings. This issue typically arises in personal injury cases, where a defendant seeks a plaintiff’s social media postings to undermine their injury claims.

The court vacated a lower court order “directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff’s private Facebook messages.”

In this personal injury case, plaintiff alleges that she was injured while riding one of defendant’s horses. She claims that “the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities” and testified at her deposition “that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.”

Defendant, unsurprisingly, sought an order “compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages.”

In a February 2014 decision and order, the motion court directed plaintiff to produce

(a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages.

After reviewing the evolving law in this area – including CPLR 3101(a) and cases addressing access to social media evidence – the court held that the motion court went too far. It explained:

[D]efendant has failed to establish entitlement to either plaintiff’s private Facebook photographs, or information about the times and length of plaintiff’s private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information[.] … Likewise, defendant’s speculation that the requested information might be relevant to rebut plaintiff’s claims of injury or disability is not a proper basis for requiring access to plaintiff’s Facebook account.

It also concluded, however, that “plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial.”