Please Tell Me That You Don't Use Facebook

Anything that goes up on a site that others can view, whether or not that network is private, is vulnerable and subject to discovery.

Whether we like it or not, social media networks are a part of our daily lives. So many people use some form of social media every day. Even grandma has a Facebook account these days. Social media accounts benefit many by giving them the means to stay connected with people on a regular basis with access to instant communication with friends and loved ones, even if they live thousands of miles apart. But every innovation has its negative side effects. Facebook and other social media network users sometimes overshare otherwise private information and post text and photos that they may later regret. We have all heard the stories about the job offer that was rescinded after the prospective employer discovered the forgotten frat house party photos posted years before. In litigation, social media networks can be a rich resource for investigation, information gathering and impeachment material. Every personal injury defense lawyer wants that photo of the plaintiff posted after their accident showing them doing the very thing they claim they can no longer do.

In New York, at least up until a week ago, civil litigants could often avoid disclosure of the contents of their Facebook accounts as long as there was nothing posted on their public profiles that suggested there was material relevant to their claims on the private portion of their page. The New York State Court of Appeals, the highest appellate court in the state, changed that with its recent decision in Forman v. Henkin, No. 1, 2018 WL 828101 (N.Y. Feb. 13, 2018). The Plaintiff in that case fell from a horse owned by defendants and claimed that due to that fall, she suffered from “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.”  During her deposition, the plaintiff testified that she had a Facebook account that she deactivated about 6 months after the accident, and that before the accident, she posted “lots” of photos of her “active” lifestyle. Id. She also testified that she could not remember if she posted any post-accident photos on her page. Id. Additionally, the plaintiff testified that she could no longer compose emails quickly or without difficulty, and that they contained many grammatical and spelling errors when she did due to her cognitive injuries. Id.

Of course, based on plaintiff’s claims, the defendant requested an authorization to obtain the contents of her entire Facebook account. When she did not provide one, the defendant filed a motion to compel discovery of the Facebook material. They argued that based on plaintiff’s claims and testimony, all of the material and photos on her page were relevant. In particular, the defendant argued that the time stamps for written posts might bear on the plaintiff’s credibility concerning her claims of cognitive deficits. The plaintiff opposed that motion, arguing that because the public portion of plaintiff’s Facebook profile only contained one photograph that did not contradict her claims, the defendant could not make a showing that the postings on the private portion of the account might contain anything relevant or material to the defense. Id. The lower court granted the defendant’s motion, but limited the scope of discovery and ordered the plaintiff to produce “all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages.”  Id. Although this was only a partial victory for the defendant, it was actually the plaintiff who appealed the decision to the Appellate Division. That court further limited the order and directed plaintiff to provide only photographs posted on her Facebook account that she intended to use at trial. Id. The defendants decided to appeal that order in the Court of Appeals and won.

The Court of Appeals reversed the Appellate Division order and reinstated the original Supreme Court order that allowed for broader discovery of information from plaintiff’s Facebook account. The Court reasoned that New York’s discovery statutes allow for broad discovery of information that is material and necessary to prove or defend an action. Id. In other words, if information is relevant, or might lead to relevant information which bears on the facts and will assist the parties in sharpening the issues and preparing for trial, it should be disclosed. Id. The Court further reasoned that information in a Facebook account, whether posted on a public or private page, should be no exception. Although litigants should be protected from vague and overbroad discovery requests that amount to nothing more than a “fishing expedition” any relevant information is fair game. The Court of Appeals ruled that there should be no heightened standard for Facebook accounts (which some of the lower courts had used) that requires a party seeking discovery to show that there may be relevant material in the private portion of the account based on what can be accessed in the public portion, in particular, because this allows the Facebook user to artificially control access simply by limiting what is on their public profile. Id. Rather, the only standard should be whether the request for discovery is “reasonably calculated” to obtain relevant information in the account or information that might lead to the discovery of relevant information. The Court reasoned that, as in this case, when a litigant places something in issue, such as her mental or physical condition, even private information, like material posted on a private Facebook page, is subject to disclosure if it is relevant to those issues. Id. This is the standard for all other types of information, including medical records, so the Court ruled that Facebook information should be no exception. Id.

Plaintiffs may see this as a loss because it will now be a bit more difficult to avoid disclosure of Facebook information in the future regardless of whether the plaintiff maintains a public or private account. This is, however, less a loss and more a cautionary tale. In reality, before the Forman decision, the lower courts in New York, while applying the heightened standard for discovery of Facebook information, often ordered disclosure of private Facebook information relevant to specific claims in a litigation anyway. Some of these decisions are discussed at length in Forman. Even the Forman court acknowledged that disclosure of a litigant’s entire Facebook account is not automatically required simply because a person commenced an action. The plaintiff in Forman was only required to provide material relevant to facts she placed at issue by her own testimony. This is the same standard that applies to all discovery in civil litigation.

The good news is that the scope of Facebook discovery can easily be limited. Litigants are still not entitled to unlimited access to Facebook material simply because there might be something relevant in the account. A request for unlimited access to Facebook information can be appropriately rejected with an objection that it is too broad and vague. Litigants are still required to tailor their requests so that they seek only specific information relevant to the claims and facts at issue. In other words, do not ask for the entire Facebook account, but ask for photos depicting particular activities or postings about certain topics within a designated time period that makes sense based on the case. If you must respond to such a request, be specific about why you object, if you do, and about what information you provide in response. More importantly, be glad that you are involved in a civil litigation, and not a criminal matter. In criminal matters, courts often grant search warrants that may require disclosure of everything in a Facebook account. This is common in large scale drug and gang conspiracy cases where what someone else posts about you could be used as evidence to link you to the conspiracy – and then your whole Facebook account and every other social media account is fair game.

The real lesson here is not a new one. Be careful what you post on social media and on other internet platforms. Advise your clients to be careful and discreet with posts. Anything that goes up on a site that others can view, whether or not that network is private, is vulnerable and subject to discovery. I am always thrilled when I ask a client if they use Facebook and the answer is no.

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Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.

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