Until very recently, the only state high court decisions (from VA and DE) on our ediscovery for defendants cheat sheet involved sanctions against plaintiffs for destroying social media evidence.
In Forman v. Henkin, ___ N.E.3d ___, 2018 WL 828101 (N.Y. Feb. 13, 2018), the New York Court of Appeals reaffirmed that discovery of plaintiff social media is available to defendants on the same basis as any other discovery, and put the kibosh on plaintiff-friendly discovery restrictions that had lower New York courts had developed to hamstring defendants seeking access to plaintiffs’ social media.
Forman was about as far from prescription medical product liability as one can get and still involve personal injury. The plaintiff fell off a horse, was badly injured, and sued the owner of the horse. Forman, 2018 WL 828101, at *1. Plaintiff, who claimed to have become “reclusive” following the accident, was a heavy social media user:
At her deposition, plaintiff stated that she previously had a Facebook account on which she posted “a lot” of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted.
Id. She also claimed to “ha[ve] difficulty using a computer and composing coherent messages” after her accident. Id. Thus, the relevance of plaintiff’s social media activities was as plain as the nose on that horse’s face. After plaintiff testified to these facts, social media information confirming or refuting them, at minimum, bears on credibility, and goes to damages, as well – right?
Well…. Not as the Appellate Division saw the issue (note: only plaintiff appealed, so the issues being considered are somewhat narrow). It limited disclosure only “to photographs posted on Facebook that plaintiff intended to introduce at trial” and “eliminate[ed] the authorization permitting defendant to obtain data relating to post-accident messages.” Forman, 2018 WL 828101, at *2. Why? The Appellate Division held that unless the defendant could find something in plaintiff’s public social media suggesting a specific basis for additional discovery, the defendant had no right to any discovery from the plaintiff’s private social media:
[T]he Appellate Division . . . employ[ed] a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account. . . . Several courts applying this rule appear to have conditioned discovery of material on the “private” portion of a [social media] account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party’s allegations in some respect.
Id. at *4 (citations omitted).
The defendant argued that its right to discover relevant evidence under the control of an opposing party is not predicated on the legal equivalent of a snipe hunt. Id. Thankfully, the Court of Appeals “agree[d],” id., and threw out the Appellate Division’s made up impediment to ediscovery for defendants. First, discovery is discovery, no matter who seeks it:
Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: “[t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof.” We have emphasized that the words material and necessary are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy.
Id. at *2 (citation and quotation marks omitted). New York recognizes only “three categories of protected materials” – “privileged matter,” “attorney work product,” and “trial preparation materials.” Id. A plaintiff’s (or defendant’s, for that matter) social media doesn’t fit in any of these categories.
Beyond the three categories, discovery may be limited if unduly “onerous.” Id. at *3. Discovery of photos actually posted by the plaintiff (with an exception for “nudity or romantic encounters” specified by the trial court) wasn’t “onerous” either, and plaintiff did not argue otherwise. Id.
The Court of Appeals in Forman flatly rejected the plaintiff’s supposed precondition to social media discovery, recognizing that it would let plaintiffs hide the ball:
[A] threshold rule requiring that party [seeking discovery] to “identify relevant information in [the social media] account” effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the materials on the public portion of the account. Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible − and not, as it should, on whether it is “material and necessary to the prosecution or defense of an action.”
Forman, 2018 WL 828101, at *4 (citation, quotation marks and footnote omitted) (emphasis added). Hear, hear.
Rather, the principle circumscribing social media discovery is the same as for all discovery – relevance to the theories and defenses of the particular case. While blanket discovery of everything in every case, whether social media or otherwise, would be “onerous,” id., discovery tailored to the plaintiff’s claims and the defendant’s defenses is normal and proper:
[T]here is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the [social media] account.
Id. at *5. Plaintiffs would have a chance to assert “any specific ‘privacy’ or other concerns” about the social media discovery being sought. Id. In “a personal injury case . . . it is appropriate to consider the nature of the underlying incident and the injuries claimed.” “Temporal limitations may also be appropriate” so that social media “posted years before an accident” may not “be germane.” Id.
The Court of Appeals also rejected the plaintiff’s argument that social media discovery “necessarily constitutes an unjustified invasion of privacy.” No it doesn’t. A plaintiff who brings a lawsuit necessarily waives privacy with respect to evidence relevant to that action.
We assume . . . that some materials on a [social media] account may fairly be characterized as private. But even private materials may be subject to discovery if they are relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege. But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records − including the physician-patient privilege − are waived. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.
Forman, 2018 WL 828101, at *5 (citation omitted) (emphasis added). We note that one of the omitted citations is to Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007), the decision confirming defendants’ right to informal interviews with treating physicians in New York, which we blogged about, here).
In short, plaintiffs who don’t want to produce their social media shouldn’t be plaintiffs. If you can’t stand the heat, get out of the courtroom.
Thus, it was “err[or]” to condition discovery of “private” social media on what a plaintiff might, or might not, have done on public social media. The Appellate Division had “effectively denied disclosure of any evidence potentially relevant to the defense.” Id. at *5 n.6. Rather, plaintiff’s testimony about her social media activities “more than met [any] threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.” Id. at *5. Any photos of plaintiff’s activities “might be reflective of her post-accident activities and/or limitations.” Id. Further, “data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer.” Id. at *6.
Forman thus confirms what we have always thought – anything a plaintiff puts on social media is fair game for discovery, to the same extent as any other information under the plaintiff’s custody and control. Decisions that seek to impose additional limitations on social media discovery, because social media is somehow different or more private, are wrongly decided.