Montfort, Healy, McGuire & Salley LLP



Winter 2016 E-Newsletter

New York Appellate Division 1st Department Rules on Discovery of Facebook Posts

Forman v. Henkin, 2015 NY Slip Op 09350

A recent case heard by the Appellate Division 1st Department reiterated the New York discovery rules as applied to social media. The case concerned a woman who was injured at her friend's home during a horseback ride. She claimed that the injury resulted from her friend’s and his employees' negligence in failing to properly tack up the saddle and maintain and inspect the equipment. As a result of the alleged negligence, she fell off the horse and claimed to have suffered a number of injuries including traumatic brain injury and spinal injuries, which caused her a number of cognitive defects that impacted her daily life. In addition to claiming memory loss, she also claimed that the injuries she suffered caused her to be socially isolated.

The defendant sought to introduce evidence from the plaintiff's Facebook account to contradict the plaintiff's claim that her "social network went from huge to nothing." During deposition, the plaintiff had admitted to posting photographs depicting her engaged in fun activities. The plaintiff had deactivated her Facebook account sometime after the accident and after the commencement of the case. Subsequently, the defendant made a motion to obtain all the plaintiff's Facebook records without limitation. This included all text messages sent through Facebook, photographs, and any other content posted.

The majority held that to allow such disclosures would expand the scope of the discovery rule inconsistent with its intended purpose. Relying on precedent, which referred to such requests as "fishing expeditions," the Appellate Division held that the discovery of Facebook information should be limited only to what is relevant to the case and will be introduced at trial.

In his dissenting opinion, Justice Saxe disagreed with the majority. He stated “the term ‘material and necessary' has long been interpreted liberally in New York, 'to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial'" and that the “standard only requires a reasoned basis for asserting that the requested category of items 'bears on the controversy.'"

To read the full decision, click here.

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