Amicus Brief Helps Secure Favorable Appellate Ruling on Discovery of "Private" Facebook Information

Amicus Brief Helps Secure Favorable Appellate Ruling on Discovery of "Private" Facebook Information

February 13, 2018

The New York State Court of Appeals handed down an important decision pertaining to discovery and the disclosure of personal information from Facebook and other social media sites. Goldberg Segalla partner Brendan T. Fitzpatrick, co-chair of the firm’s Appellate practice, contributed to the Defense Association of New York’s (DANY) amicus brief on the matter.

In Forman v. Henken, the Court of Appeals wrestled with the issue of disclosure of information from Facebook and similar social-media sites in personal-injury litigation. The court reversed the Appellate Division and found that the defendant satisfied his burden of showing his entitlement to discovery of “private” portions of the plaintiff’s Facebook page.

The Appellate Division had ruled that the party seeking disclosure may view only the materials the account holder happens to have posted on the public portion of the account. Therefore, it established a threshold rule that requires the party to “identify relevant information in [the] Facebook account,” which 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. The Court of Appeals reasoned that under this approach, disclosure turns on the extent to which some of the information sought is already accessible — and not on whether it is “material and necessary to the prosecution or defense of an action.” The court continued that the purpose of discovery was to determine if material relevant to a claim or defense exists. Thus, it rejected the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials. While the plaintiff claimed that this was an invasion of privacy, the court noted even private matters could be the subject of discovery.

The decision aligned with the DANY amicus brief that Brendan helped to author. The ruling can (and will) cut both ways, as plaintiffs will also be able to seek such discovery from defendants when appropriate. However, it does supply some clarity and ammunition in the form of analysis and guidelines for attorneys seeking discovery.