Users of social media are likely familiar with privacy settings, and understand that setting their profiles to “private” ensures that people who are not friends, connections or followers cannot view their information and postings. However, it is equally likely that most social media users have not considered whether those privacy settings protect their information from production in litigation. The Court of Appeals of New York recently considered the issue.

Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (N.Y. Feb. 13, 2018), is a personal injury case in which the plaintiff fell off a horse owned by the defendant. The plaintiff alleges that she suffered spinal and brain injuries that caused cognitive deficits, memory loss, difficulties communicating and social isolation. It was the plaintiff’s position that she had become reclusive because of her injuries and had trouble using a computer and composing coherent messages. During the plaintiff’s deposition, she testified that prior to her injury she had an active Facebook account on which she posted “a lot” of photographs showing her active lifestyle, but that she had deactivated her account six months after the accident due to her desolation.

The defendant moved to compel (after the plaintiff refused to authorize the defendant) access to the plaintiff’s entire “private” Facebook account. The defendant argued that her Facebook account was relevant to the plaintiff’s allegations that she was active before the accident and posted photographs showing that activity. The defendant also argued that her account would be relevant to her claims that she could no longer engage in those activities and that the accident negatively affected her ability to read, write and use a computer. The plaintiff opposed the motion on the basis that the defendant was not entitled to her private account because the public portion contained only a single photograph that did not contradict the plaintiff’s claims.

The Supreme Court of New York ordered the plaintiff to (1) produce all photographs of herself posted to Facebook prior to the accident that she intends to introduce at trial, (2) produce all photographs of herself posted to Facebook after the accident (with a limited exception regarding private romantic photographs) and (3) authorize Facebook to provide data showing each time the plaintiff posted a private message after the accident and the number of characters or words in the messages.

Despite the Supreme Court denying much of the defendant’s motion, only the plaintiff appealed the decision. The Appellate Division limited the Supreme Court’s ruling, finding that the plaintiff need only produce photographs she intended to use at trial, regardless of whether such photographs were posted before or after the accident. In so holding, the Appellate Division relied on a previous decision, which stated:

To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account – that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses and other claims.

Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620 (1st Dep’t 2013). Although the Appellate Division did not so state, the Court of Appeals assumed the Appellate Division conditioned discovery of the plaintiff’s private Facebook material on whether the party seeking disclosure demonstrated there was material in the public that contradicted the injured party’s allegations in some respect. See Spearin v. Linmar, 129 A.D.3d 528 (1st Dep’t 2015). That is, if the plaintiff’s publicly posted information did not contradict her claims, the defendant is not entitled to any private information.

The defendant appealed and the Court of Appeals rejected the “heightened threshold” applied by the Appellate Division, and instead held that the threshold is whether the materials sought are reasonably calculated to contain relevant information – not whether they are private. Thus, the Court reversed the Appellate Division and found that the photographs both before and after the accident are reasonably calculated to yield evidence relevant to the plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. The Court made clear, however, that this is not a one-size-fits-all ruling, but that courts must consider whether relevant information is likely to be found on the Facebook account, and balance the potential utility of the information against privacy concerns.

The Court of Appeals’ decision contradicts other similar decisions in which defendants sought information from Facebook to undermine plaintiffs’ claims. In those cases, courts applied the heightened standard for discoverability of Facebook postings, similar to the Appellate Division here. See Potts v. Dollar Tree Stores, Inc., Case No. 3:11-cv-01180 (M.D. Tenn. 2013) (refusing to grant access to private Facebook page because “Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence”); Thompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012) (finding there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence). However, the Court of Appeals’ decision in Forman makes sense in a non-ESI context. If the defendant served discovery requests for photographs in the plaintiff’s possession that related to her quality of life and activities after the accident, it would not matter where she kept the photographs (photo album or safe deposit box, for example); if such photographs were responsive, she would be required to produce them. In any event, the bottom line is that Facebook (and other social media) posts can be discoverable, and your clients should treat that information like any other ESI in discovery. Clients should also understand the risks of posting information to social media accounts that could contradict their claims, and know that simply setting the account to private does not necessarily protect it from production.