“Private” Facebook Posts Are Discoverable and Should Be Treated as Any Other Source of Discoverable Information

The New York Court of Appeals unanimously ruled in Forman v. Henkin that “private” Facebook posts (i.e., those accessible only to your Facebook “friends,” as opposed to the general public) are discoverable if they meet the common discovery standard—that they are “material and necessary to the prosecution or defense of an action.”

In Forman, plaintiff alleged she was severely injured when she fell from defendant’s horse. Plaintiff alleged her injuries impaired her ability to communicate and participate in what she described as the active lifestyle she enjoyed before the accident. Plaintiff alleged she posted on Facebook many photographs that depicted her pre-accident lifestyle, but that communicating on that social media platform had become so difficult after the accident that she deactivated the account six months later. She alleged that, after her accident, it would take hours to write a message on Facebook because she would have to re-read it several times before sending it to be sure that it made sense.

Defendant requested an unlimited authorization to obtain plaintiff’s “private” Facebook account postings, arguing they would be relevant to plaintiff’s claims. The Supreme Court ordered plaintiff to produce all photographs (that were not of a romantic or sexual nature) and an authorization that would allow defendant to obtain from Facebook the frequency of plaintiff’s Facebook posts, along with the number of words and characters in each, but not the actual content. However, the Appellate Division reversed, holding that the party seeking discovery must first establish a factual predicate in the “public” portion of the Facebook profile that information in the “private” Facebook messages is likely to be relevant to the allegations and defenses in the case.

The Court of Appeals reversed, holding that such a heightened threshold was inappropriate because it would allow “the account holder to unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.” Instead, courts should employ the common standard and determine whether the information is relevant to the dispute, while also being sensitive to not requiring the disclosure of truly “sensitive or embarrassing materials of marginal relevance.” In other words, the Court of Appeals determined the First Appellate Department had reversed the proper analysis: “the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

Thus, counsel should expect “private” Facebook messages and posts to be as discoverable as any other form of communication, including email. A litigant may not post material that would undermine her allegations or defenses in a lawsuit and shield them from discovery because they are not viewable by the general public, nor can she modify her privacy settings post hoc in an attempt to prevent them from being the subject of discovery.

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