Norton Rose Fulbright - Data Protection Report blog

On February 13, 2018, in Forman v. Henkin, 2018 NY Slip Op 01015, New York’s highest state court unanimously ruled that “private” social media posts may be subject to discovery in civil lawsuits.

The Facts

This personal injury case began when the plaintiff fell from a horse owned by the defendant, allegedly due to a defective stirrup breaking.  As a result of that fall, the plaintiff alleged that she suffered both spinal and brain injuries, causing, among other things, difficulties with her ability to make written an oral communications.  The plaintiff said that she had been active on social media prior to the accident, posting many photos of her active lifestyle.  Since the fall, however, she alleged that her injuries made it difficult to compose coherent messages and their composition would take a very long time.  As a result, she de-activated her social media account approximately 6 months after the accident.

The Lower Court Rulings

The plaintiff sued the defendant for damages due to her injuries, in New York state court.  The defendant sought discovery pursuant to New York’s Civil Practice Law and Rules § 3101(a).  He requested all contents of the plaintiff’s private social media account.  The defendant claimed the material was relevant to the scope of the plaintiff’s injuries and her credibility.  He sought photos to document her activities (or lack thereof) and timestamps showing the length of time the plaintiff took to write a message, as well as the contents of the messages.

The plaintiff did not claim any of the exceptions permitted by New York law, generally relating to attorney-client privilege, attorney work product, or trial preparation materials.  Instead, she argued that the defendant had not met the burden of proving a basis for access to her social media account.  She pointed out that her lone “public” photo did not contradict either her claims or her deposition testimony.

The trial court ruled that the plaintiff had to produce all posted photos of herself, except for those depicting nudity or romantic encounters.  The court also ordered that the plaintiff authorize the social media platform to release records showing each time the plaintiff posted a private message after the accident and the number of characters or words in the message.  The court denied the defendant’s request for the contents of the plaintiff’s posts before or after her fall.

Only the plaintiff appealed the trial court order.  The state appellate court modified the order by limiting disclosure to the photos that the plaintiff intended to introduce at trial.  The appeals court reversed the order for data about the plaintiff’s messages.

The defendant appealed the appellate court order, seeking to reinstate the trial court order.  (By not appealing the trial court order, the defendant had limited his options on appeal.)

New York Top Court Ruling

New York’s highest court unanimously reversed the appellate court, and reinstated the trial court’s order.  The court ruled that discovery in civil actions would be on a case-by-case basis “to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.  The test is one of usefulness.”  In other words, the party seeking discovery must establish that the request “is reasonably calculated to yield information that is ‘material and necessary’ – i.e. relevant – regardless of whether discovery is sought from another party or a nonparty.”  (citations omitted).

The court stated that “we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials,” but also “we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire [social media] account automatically discoverable.”  (citations omitted).  The court also rejected a “need for specialized or heightened factual predicate to avoid improper ‘fishing expeditions.’”  Instead, the court offered a case-by-case analysis:

courts 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 [social media] account.  Second, balancing the potential utility for 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.

The court stated that temporal limitations may be appropriate and “to the extent the account may contain sensitive embarrassing materials or marginal relevance, the account holder can seek protection from the court.”  In the case at bar, the court found that it was “appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each.”

Here, the court found that the defendant’s request for the “private’ photos 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 and that she had become reclusive.”  The court also found the defendant’s request for data about the plaintiff’s messages “would be relevant to plaintiff’s claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer.”  The court did not reach the defendant’s request for the contents of the messages because he had not appealed the trial court’s ruling on that point.


The Forman opinion follows the majority of courts that have found that social media communications are discoverable so long as they are relevant, proportional, and within the control of the party who is being asked to produce them.  As the court said in Robinson v. Jones Lang Lasalle Americas, 3:12-cv-00127-PK, 2012 U.S. Dist. LEXIS 123833 (D. Or. Aug. 29, 2012): “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”  To that point, is there a difference between a “private” email between 2 people hosted on gmail or Office365 and a “private” message or post hosted on social media?  Corporations may see this a boon and an opportunity to conduct meaningful discovery of plaintiffs in asymmetric cases, but they should also recognize that their own employees may be making relevant business communications on similar e-communication channels.  Corporations should consider implementing information governance policies and programs to guide their employees’ behavior and update their discovery processes to address this potential new cache of pertinent documents.