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By Jason T. Katz
Lewis Johs Avallone Aviles LLP
Islandia, New York

In a game-changing decision, the New York Court of Appeals unanimously held that a personal injury plaintiff can be required to disclose "private" Facebook photographs and posts. This decision has the potential to profoundly impact discovery and trials in personal injury actions.

In Forman v. Henkin, the trial court compelled plaintiff to produce her personal photographs posted on Facebook both before and after the accident. Although the Appellate Division thereafter limited the trial court's ruling, the Court of Appeals reversed the Appellate Division and reinstated the trial court's order. The Forman decision holds that there "is nothing so novel about Facebook materials that precludes application of New York's long-standing disclosure rules to resolve this dispute." Moreover, the Court rejected the argument that an account holder's "privacy settings" govern the scope of disclosure of social media materials. In connection therewith, the Court notes that just because the plaintiff characterizes some material as "private" does not mean that they are not discoverable if relevant. Indeed, the Court holds true to the principle that for purposes of disclosure, the relevant inquiry is not whether the sought-after material is private but whether it is "calculated to contain relevant evidence."

Not surprisingly, the Court does not advance a "one size fits all" approach. Rather, should court intervention to decide this dispute be necessary - which it inevitably will - the Court of Appeals directs that courts should first consider: (i) the nature of the event giving rise to the litigation/injuries claimed and assess whether any relevant material is "likely to be found" on the Facebook account; and (ii) the court should then employ a balance test, weighing the potential utility of the information sought against any specific "privacy" or other concerns, and the court should issue an order tailored to the controversy before it, avoiding disclosure of nonrelevant material.

Even with these limitations, the ruling changes the landscape of discovery in personal injury actions. Defense counsel finally have solid legal basis to compel relevant discovery that previously proved elusive.