United States: Private Facebook Posts Could Be Fair Game For Discovery

Last Updated: May 3 2018
Article by Melissa Osipoff and Julia H. Wilson

New York's highest court recently held that social media users may be required to turn over information from their accounts—regardless of the user's chosen privacy settings—as part of the discovery process (Forman v. Henkin). This decision will likely prove useful to employers both in and outside New York, who often seek disclosure of their opponents' posts on Facebook or other social media during litigation with their employees.  

Private Facebook Posts Become Critical Evidence

The case arose after a woman named Kelly Forman was injured in a horseback-riding accident. She sued the horse's owner, Mark Henkin, for damages allegedly caused by the mishap, including spinal and traumatic brain injuries. She claimed the injuries led to cognitive defects that impaired her ability to communicate and resulted in social isolation. At her deposition, Forman testified that, prior to the accident, she often documented her life on Facebook, but that her injuries made it difficult to use a computer or compose coherent messages and prevented her from continuing to do so. She claimed that she had since become reclusive.

Henkin sought production of Forman's "private" Facebook posts (i.e., those not shared with the general public) in order to determine whether she was telling the truth, and to determine the full extent of her alleged incapacity. Forman refused to produce the private posts, arguing that it would be an unacceptable intrusion on her personal life.

The defendant moved to compel disclosure, and the lower state court ordered Forman to turn over only some of the requested nonpublic information from her Facebook page. The Appellate Division took a harder line against disclosure, holding that Forman need only produce those posts she intended to use at trial.

New York's Highest Court Permits Discovery

The defendant appealed the decision to New York's highest state court, the Court of Appeals, where it was reversed on February 13, 2018. The court said that "there was nothing so novel about Facebook materials that precludes application of New York's long-standing disclosure rules" permitting discovery of all matter "material and necessary" unless protected by a privilege. In so doing, the court rejected a heightened standard used by some lower courts that require an opposing party to first identify information in the public portion of the account that contradicted the party's allegations before permitting it to compel discovery of the private portion.

The court cautioned, however, that its holding did not mean an entire Facebook account should be rendered automatically discoverable simply because the user commenced a personal injury action. Instead, the Court of Appeals directed the lower courts to analyze disclosure on a case-by-case basis, considering the nature of the event that gave rise to the litigation and the injuries claimed, to assess whether relevant material is likely to be found on the private social media account. The court also advised that disclosure orders should be narrowly tailored to avoid disclosure of non-relevant material.

Decision Advances Social Media Discovery

The court's decision is an arrow in the quiver for employers seeking discovery of private social media during litigation with their current or former employees. It means that New York courts can no longer apply a heightened standard when determining whether private social media content should be disclosed to an opposing party. Instead, they should now require production if the discovery request is reasonably calculated to yield information that is material and necessary. 

This decision might also signal the start of a trend whereby courts throughout the country demonstrate a better understanding of the role of social media in discovery. Thus far, courts have shown muddled views on the subject, with some wary of permitting discovery of "private" social media, while others have mandated broad production. With Forman v. Henkin in mind, courts across the country may recognize that social media should be subject to the same longstanding local rules applied to all other discovery. 

As mentioned previously, courts will not abandon discovery guidelines altogether to allow unbridled discovery of litigants' social media accounts. You should work with your counsel to craft social media discovery requests wisely in order to have the best chances of the court ultimately mandating disclosure. Thus, you should not request production of a person's entire Facebook or other social media account; this will likely be viewed as a fishing expedition.   

Instead, you should work with your counsel to draft more tailored discovery requests that seek targeted discovery of social media tied to the specific issues in the case. For example, if the case involves emotional distress damages, you should ask for all social media posts that comment on the employee's mood, feelings, emotions, or state of mind.   

Generally speaking, you and your counsel should be familiar with the various and ever-growing array of social media platforms that your employees are likely to use. While there are some stalwarts in social media (e.g. Facebook, LinkedIn, Twitter and Instagram), other platforms like Snapchat, Reddit, and Pinterest are also popular, and new ones are developing regularly. The better you understand what is out there, the easier it will be to formulate discovery requests tailored to address those platforms.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Morris, Manning & Martin, LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Morris, Manning & Martin, LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions