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Forman v Henkin

Court of Appeals of New York

 January 2, 2018, Argued ; February 13, 2018, Decided

No. 1


 [**885]  [***160]  [*659] Chief Judge DiFiore.

In this personal injury action, we are asked to resolve a dispute concerning disclosure of materials from plaintiff's Facebook account.

Plaintiff alleges that she was injured when she fell from a horse owned by defendant, suffering spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. 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. She maintained that she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages. In that regard, plaintiff produced a document she wrote that contained misspelled words and faulty grammar in which she represented that she could no longer express herself the way she did before the accident. She contended, in particular, that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.

Defendant sought an unlimited authorization to obtain plaintiff's entire "private" Facebook account, contending the photographs and written postings would be material and necessary to his defense of the action under CPLR 3101 (a). When plaintiff failed to provide the authorization (among other outstanding discovery), defendant moved to compel, asserting that the Facebook material sought was relevant to the scope of plaintiff's injuries and   her credibility. In support of the motion, defendant noted that plaintiff alleged that she was quite active before the accident and had posted photographs on Facebook reflective of that fact, thus affording a basis to conclude her Facebook account would contain evidence relating to her activities. Specifically, defendant cited the claims that plaintiff can no longer cook, travel, participate in sports, horseback ride, go to the movies, [***161]  [**886]  attend the theater, or go boating, contending that photographs and messages she posted on Facebook would [*660]  likely be material to these allegations and her claim that the accident negatively impacted her ability to read, write, word-find, reason and use a computer.

Plaintiff opposed the motion arguing, as relevant here, that defendant failed to establish a basis for access to the "private" portion of her Facebook account because, among other things, the "public" portion contained only a single photograph that did not contradict plaintiff's claims or deposition testimony. Plaintiff's counsel did not affirm that she had reviewed plaintiff's Facebook account, nor allege that any specific material located therein, although potentially relevant, was privileged or should be shielded from disclosure on privacy grounds. At oral argument on the motion, defendant reiterated that the Facebook material was reasonably likely to provide evidence relevant to plaintiff's credibility, noting for example that the timestamps on Facebook messages would reveal the amount of time it takes plaintiff to write a post or respond to a message. Supreme Court inquired whether there is a way to produce data showing the timing and frequency of messages without revealing their contents [****4]  and defendant acknowledged that it would be possible for plaintiff to turn over data of that type, although he continued to seek the content of messages she posted on Facebook.

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30 N.Y.3d 656 *; 93 N.E.3d 882 **; 70 N.Y.S.3d 157 ***; 2018 N.Y. LEXIS 180 ****; 2018 NY Slip Op 01015; 2018 WL 828101

 [1]  Kelly Forman, Respondent, v Mark Henkin, Appellant.

Subsequent History: Motion denied by, Motion granted by Forman v. Henkin, 2018 N.Y. Misc. LEXIS 3381 (N.Y. Sup. Ct., Aug. 13, 2018)

Prior History: Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered December 17, 2015. The Appellate Division order, insofar as appealed from, modified, on the law and the facts, an order of the Supreme Court, New York County (Lucy Billings, J.; op 2014 NY Slip Op 30679[U] [2014]), which had, to the extent appealed from as limited by the briefs, granted defendant's motion to compel to the extent of directing plaintiff to produce all photographs of plaintiff privately posted on Facebook prior to the accident at issue that she intends to introduce at trial, all photographs of plaintiff privately posted on Facebook after the accident that do not show nudity or romantic encounters, and 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. The modification consisted of vacating those portions of the order directing plaintiff to produce photographs of herself posted to Facebook after the accident that she does not intend to introduce at trial, and authorizations related to plaintiff's private Facebook messages. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as modified by this Court, properly made?"

Forman v. Henkin, 2014 N.Y. Misc. LEXIS 1218 (N.Y. Sup. Ct., Feb. 28, 2014)Forman v. Henkin, 134 A.D.3d 529, 22 N.Y.S.3d 178, 2015 N.Y. App. Div. LEXIS 9353 (Dec. 17, 2015)

Disposition: Order insofar as appealed from reversed, with costs, order of Supreme Court, New York County, reinstated and certified question answered in the negative.


Facebook, disclosure, discovery, photographs, posted, messages, media, privacy, relevant information, threshold, account holder, courts, injuries, reasonably calculated, authorization, post-accident, shielded

Civil Procedure, Discovery & Disclosure, Discovery, Relevance of Discoverable Information, Privileged Communications, Attorney-Client Privilege, Work Product Doctrine, Scope of Protection, Undue Burdens in Discovery, Appeals, Standards of Review, Abuse of Discretion