No fishing on Facebook, holds appellate division: request to search through plaintiff's online photos denied in absence of factual predicate.

• Author: Rogak, Lawrence
• Position: COURTSIDE

Forman v Henkin

Can a defendant in a personal injury case get access to a plaintiff's Facebook photos and private messages so that the defendant can search for evidence that might contradict the plaintiff's allegations? No, says the Appellate Division at least, not unless the defendant already found something (e.g. a photo) that lays a foundation for a further search. In an interesting footnote, the Court also says that Facebook posts that are "permanently deleted" might form a basis for a spoliation charge.--LNR

In this personal injury action, plaintiff alleges that while riding one of defendants horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent because he failed to properly prepare the horse for riding, and neglected to maintain and inspect the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages. Supreme Court, Bronx, granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages.

The Appellate Division reversed.

CPLR 3101(a) provides that "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." In determining whether the information sought is subject to discovery, "the test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). "It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Vyas v Campbell, 4 AD3d 417, 418 [2d Dept 2004], quoting Crazy town Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [2d Dept 1989]; see also GS Plasticos Limitada v Bureau Veritas Consumer Prods. Servs., Inc., 112 AD3d 539, 540 [1st Dept 2013] [sufficient factual predicate required for discovery demands]; Sexter v Kimmelman, Sexter, Warmflash & Leitner, 277 AD2d 186 [1st Dept 2000]). Discovery demands are improper if they are based upon "hypothetical speculations calculated to justify a fishing expedition" (Budano v Gurdon, 97 AD3d 497,499 [1st Dept 2012], quoting Manley v New York City Hous. Auth., 190 AD2d 600, 601 [1st Dept 1993]).

This Court has consistently applied these settled principles in the context of discovery requests seeking a party's social media information. For example, in Tapp v New York State Urban Dev. Corp. (102 AD3d 620 [1st Dept 2013]), we denied the defendants' request for an authorization for the plaintiff's Facebook records, concluding that the mere fact that the plaintiff used Facebook was an insufficient basis to provide the defendant with access to the account. Likewise, in Pecile v Titan Capital Group, LLC (113 AD3d 526 [1st Dept 2014]), we concluded that vague and generalized assertions that information in the plaintiff's social media sites might contradict the plaintiff's claims of emotional distress were not a proper basis for disclosure (see also Abrams v Pecile (83 AD3d 527 [1st Dept 2011] [rejecting the defendant's demand for access to the plaintiff's social networking sites because there was no showing that information in those accounts would lead to relevant evidence bearing on the plaintiff's claims]).

Other Departments of the Appellate Division, consistent with well-established case law governing disclosure, have required some threshold showing before allowing access to a party's private social media information (see e.g. Richards v Hertz Corp., 100 AD3d 728, 730-731 [2d Dept 2012] [striking demand for Facebook information of one of the plaintiffs because there was no showing that the disclosure of that material would result in disclosure of relevant evidence or would be reasonably calculated to lead to discovery of information bearing on the claim]; McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [4th Dept 2010] [denying authorization for the plaintiff's Facebook information where the defendant failed to establish a factual predicate of relevancy, and characterizing the request as "a fishing expedition ... based on the mere hope of finding relevant evidence"].

Guided by these principles, we conclude that defendant has failed to establish entitlement to either plaintiff's private Facebook photographs, or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information (see Tapp, 102 AD3d at 620 [the plaintiff's mere utilization of a Facebook account is not enough]). Likewise, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account ([the defendants' argument that the plaintiff's Facebook postings might reveal daily activities that contradict claims of disability is "nothing more than a request for permission to conduct a fishing expedition"]; Pecile, 113 AD3d at 527 [vague and generalized assertions that the information sought might conflict with the plaintiff's claims of emotional distress insufficient]). [FN1]

However, in accordance with standard pretrial procedures, plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial. Plaintiff concedes that she cannot use these photographs at trial without having first disclosed them to defendant.

We disagree with the dissent's position that we should reconsider the well-settled body of case law, from both this Court and other Departments, governing the disclosure of social media information. Both parties here agree with the general legal principles set forth in the existing case law and differ only as to the application of those principles to the specific facts of this case. Neither party asks us to revisit our controlling precedent, and the doctrine of stare decisis requires us to adhere to our prior decisions (see People v Aarons, 305 AD2d 45, 56 [1st Dept 2003] ["stare decisis stands as a check on a court's temptation to overrule recent precedent. Only compelling circumstances should require us to depart from this doctrine"], affd 2 NY3d 547 [2004]). Although we agree with the dissent that social media is constantly evolving, there is no reason to alter the existing legal framework simply because the potential exists that new social network practices may surface. Furthermore, there is no dispute that the features of Facebook at issue here (i.e., the ability to post photographs and send messages) have been around for many years.

Contrary to the dissent's view, this Court's...