The Law and Business of Social Media
February 24, 2020 - Discovery, Litigation

Are Facebook Posts Discoverable? Application of the Forman Test in N.Y.

Are Facebook Posts Discoverable? Application of the Forman Test in N.Y.

New York courts are increasingly ordering the production of social media posts in discovery, including personal messages and pictures, if they shed light on pending litigation. Nonetheless, courts remain cognizant of privacy concerns, requiring parties seeking social media discovery to avoid broad requests akin to fishing expeditions.

In early 2018, in Forman v. Henkin, the New York State Court of Appeals laid out a two-part test to determine if someone’s social media should be produced: “first consider the nature of the event giving rise to the litigation and the injuries claimed . . . to assess whether relevant material is likely to be found on the Facebook account. Second, balanc[e] the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder.”

The Court of Appeals left it to lower New York courts to struggle over the level of protection social media should be afforded in discovery. Since this decision, New York courts have begun to flesh out how to apply the Forman test.

In Renaissance Equity Holdings LLC v. Webber, former Bad Girls Club cast member Mercedes Webber, or “Benze Lohan,” was embroiled in a succession suit. Ms. Webber wanted to continue to live in her mother’s rent controlled apartment after the death of her mother. To prevail, Ms. Webber had to show that she had lived at the apartment for a least two years prior to her mother’s death.

To determine Ms. Webber’s primary residence, the property company asked her to produce all of her “posts whether in her legal name, Benze Lohan, or any other aliases . . . to social media, including but not limited to Instagram, Twitter, YouTube, and Facebook.”

Applying the Forman test, the court found that this request was overbroad for two reasons. First, it did not define a specific timeframe for the post, and, second, it did not list the specific information “sought within these posts on the narrow issue of primary residence.” The court ultimately ordered that Ms. Webber produce all social media posts from the two years prior to her mother’s death that list a location, a comment made by Ms. Webber about a location and any posts in which Ms. Webber mentioned the word home or a synonym for it. The court allowed Ms. Webber to preserve her privacy by directing her to produce redacted posts in most instances. She only had to produce unredacted posts for those in which she used the word home or a similar term.

In Israeli v. Rappaport, Deborah Israeli sued her surgeon, David Rappaport, for malpractice after he performed breast implant surgery on Ms. Israeli that resulted in nerve damage and other injuries. She sued claiming that she could no longer lift more than 10-15 pounds and that she had limited range of motion and other lasting permanent injuries. Her husband, Avi Israeli, added a loss of services claim in which he asserted that he had lost Ms. Israeli’s care, affection and companionship. Dr. Rappaport requested access to Ms. Israeli’s “social networking information/photos” from her LinkedIn, Instagram, MySpace, Facebook and Twitter. Dr. Rappaport ultimately narrowed the request to all photographs, videos, posts and private messages between Mr. and Ms. Israeli from one year before the surgery to the present so that he could see if Ms. Israeli’s injuries were permanent and if there really was loss of services to her husband. The court applied the Forman test and further limited the scope of what needed to be produced to videos, pictures and other posts that showed Ms. Israeli’s physical activities particularly as they related to her alleged injuries and interactions between the couple. It also ordered that any pictures, videos, posts or messages that were shared privately between the Israelis or posts the showed romantic encounters or nudity should be produced to the court for in camera inspection to preserve the couple’s privacy.

Recently, in Spoljaric v. Savarese, the court considered social media discovery requests in a car accident case. Mr. Spoljaric claimed injuries suffered in the accident impaired his quality of life and ability to enjoy leisure time activities. Ms. Savarese, who was alleged to have caused the accident, sought to disprove Mr. Spoljaric’s claims with some novel discovery requests. First, Ms. Savarese sought all data collected by Mr. Spoljaric’s Fitbit device to show his continued post-accident activity.  Second, she also sought information from Mr. Spoljaric’s accounts with Bumble and Okcupid, popular dating sites. Third, she sought all photographs posted by Mr. Spoljaric to Facebook, Instagram and Twitter. The court rejected the request for the Fitbit data.  While Mr. Spoljaric had lost fifty pounds since the accident, the court noted that the loss of weight was more likely due to diet than exercise. The court also rejected the request for the dating site information. Applying the Forman test, the court found that forcing Mr. Spoljaric to produce information from dating sites would involve too much of an invasion of his personal privacy. The court, however, directed Mr. Spoljaric to provide copies of photographs posted to his Facebook, Instagram and Twitter accounts depicting him in social, recreational or physical activities after the date of the accident.

Limiting the requests in both time and subject matter to avoid the appearance of a fishing expedition remains critical. Compare two recent personal injury cases. In Valentine v. Collins Brothers Moving Corp., Arthur Valentine was injured in a car accident and sued Collins Brothers Moving Corporation. The court rejected Collins Brothers Moving Corporation’s request to access Mr. Valentine’s social media accounts or direct him to download and disclose the contents of these accounts and to provide duly-executed unrestricted authorizations for all of his social media accounts. Applying the Forman test, the court rejected these blanket demands, which would yield every photograph or communication Mr. Valentine had on any topic prior to and since the car accident.

In Vasquez-Santos v. Mathew, the court considered a much narrower request in a similar accident case. In this case, Genaro Vasquez-Santos, a former semi pro basketball player, complained that he could no longer play ball. The court permitted social media discovery that was appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing Mr. Vasquez-Santos engaging in basketball or other similar physical activities.

Other post-Forman social media cases highlight the need to limit requests in time and scope. In Doe v. Bronx Preparatory Charter School, the court rejected Bronx Preparatory Charter School’s demand for access to social media accounts of a student for five years prior to her being attacked on campus, noting that the student had provided access to her social media accounts for the two months leading up to the incident. In Vivona v. Bridgeview Associates LLC, the court considered a case in which James Vivona suffered a head injury when he tripped on a misleveled elevator at Bridgeview Associate’s building. Mr. Vivona claimed to have suffered impaired cognitive functions. Bridgeview Associates found public Facebook photos showing Mr. Vivona playing hockey and sporting a black eye. Bridgeview Associates argued that Mr. Vivona’s impaired cognitive functions could have been caused by the head injuries he suffered while playing hockey and that his social media could uncover more evidence relevant to the actual cause of his cognitive injuries. The court allowed discovery of Mr. Vivona’s social media, but limited it to photographs or other content referencing him engaged in athletic activities.

Prior to the Court of Appeals decision in Forman, courts may have felt more uneasy authorizing discovery of social media posts because they had perceived them to be more personal and private than other types of documents. However, as these cases show, post-Forman, New York courts are increasingly willing to allow discovery of personal pictures and private messages if they are reasonably likely to shed light on an aspect of the litigation.

Parties seeking such discovery, however, should not go overboard. They need to give thought to what is actually relevant to the dispute. When making the requests, they need to be specific in both time and subject matter. Cast too wide a net, and courts will still push back.