United States: Go Fish: Do General Discovery Rules Apply To A Litigant's Facebook Posts?

While discovery of social media information has been commonplace for some time, courts are still struggling with when such discovery should be allowed. While courts generally hold that normal discovery rules apply to social media discovery, at least one judge has identified—and railed against—emerging trends in such cases that impose additional hurdles for litigants seeking discovery of social media information.

Recently, in Forman v. Henkin, a divided New York State Appellate Division panel debated whether requests for Facebook photos are subject to the same standard as any other discovery request. In this personal injury case, the plaintiff, Kelly Forman, alleged that she was injured when a leather stirrup broke while she was riding one of defendant's horses, sending her tumbling to the ground and causing Forman physical and mental injuries. Forman claimed that her injuries have limited her social and recreational activities and that her "social network went from huge to nothing."

The trial judge granted the defendant's request for Forman's social media activity, including:

  1. "all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial,"
  2. "all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters," and
  3. "authorizations for defendant to obtain records from Facebook showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages."

In an unsigned opinion for four of the five justices on the panel, a New York appeals court reversed the trial court and substantially limited the scope of the defendant's request, allowing discovery only of photographs posted on Facebook "either before or after the accident" that Forman "intends to use at trial"—effectively gutting the discovery request.

Citing long-standing principles of discovery and New York's civil procedure rules, the panel held that discovery should include only matters "material and necessary" to the action, and the party seeking discovery must demonstrate that the request is "reasonably calculated" to lead to relevant information. In contrast, "hypothetical speculations calculated to justify a fishing expedition" are improper.

Applying these principles, the panel concluded that the defendant failed to establish that the request for either the private photos or messages might produce relevant information.

While the majority resoundingly rejected the accusation that it was applying different discovery rules for social media information, Justice Saxe, dissenting, identified two emerging trends in discovery procedures that he viewed as "problematic": First, that a defendant is permitted to seek discovery of a plaintiff's nonpublic social media information "if, and only if, the defendant can first unearth some item from the plaintiff's publicly available social media postings that tends to conflict with or contradict the plaintiff's claims"; and second, that trial courts must then "conduct an in camera review of the materials . . . to ensure that the defendant is provided only with relevant materials." According to Justice Saxe, these two developments, applied in this case and other recent rulings, amount to extra procedural burden on the party seeking social media discovery, and add a substantial and unnecessary burden to often overworked trial courts.

Instead, Justice Saxe advocated applying the traditional discovery approach of any other document request—that is, treating social media information the same as any other document, tangible or electronic. Thus, a demand must have a reasoned basis that the requested category of items bears on the controversy, and must not be overbroad and fail to distinguish relevant from irrelevant items. In most contexts, the defendant describes a type of content relevant to the claimed event or injuries and the plaintiff locates such documents in his or her possession or control. Judge Saxe noted that a party is not normally required to prove the existence of relevant material before requesting it. In sum, "[u]pon receipt of an appropriately tailored demand, a plaintiff's obligation would be no different than if the demand concerned hard copies of documents in filing cabinets."

Finally, Justice Saxe pointed out that the majority's focus on "private" Facebook photos should not be a legitimate basis for treating social media information differently. Such "private" photos are by definition shared with at least a small universe of individuals—a Facebook user's Friends or a Group—and the expectation of privacy for such posts is low.

Even in light of Justice Saxe's critique, the majority held firm that the discovery standard they applied is the same for social media information as it is for any other documents and that the request was an unreasonably broad fishing expedition.

This case can perhaps best be understood as a lesson in specificity in social media discovery requests. Courts may simply feel uneasy authorizing broad discovery requests regarding social media, which they may perceive as more personal and private. The panel clearly felt uneasy about the "unbridled" scope of the social media discovery request, and suggested that the dissent's position is a slippery slope that leads to production of all information stored in "social media, a cell phone or a camera, or located in a photo album or file cabinet," or even in "diaries, letters, text messages and emails."

We wonder how the court would have dealt with a more targeted request—for instance, a request for all "private" Facebook photographs after the accident that depict Forman engaging in strenuous physical activity. As we've previously discussed, courts have regularly demanded specificity in discovery requests for social media information and have rejected requests that are not narrowly tailored to potentially relevant information.

This case demonstrates that, while the legal standard for discovery may technically be clear, courts are still grappling with the level of procedural protection such information should be afforded. This issue will surely be the topic of future litigation for years to come.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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J. Alexander Lawrence
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