Legal Alert! New York’s Highest Court Announces Big Changes – Commentary by GVK Partner Dan Mevorach

Yesterday, in Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (Feb 13, 2018), the Court of Appeals, New York’s highest Court, issued a major decision overruling prior Appellate Division caselaw that required “defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims’” in order to gain access to Facebook account.

The Court of Appeals, while recognizing that commencing a personal injury action does not render a Plaintiff’s entire Facebook account automatically discoverable, and that there should be no one-size-fits-all rule for Facebook account information, held that trial courts should follow a common-sense rule where, in personal injury cases, the nature of the incident and the injuries claimed should be the starting point for what should be disclosed.

This decision liberalizes the requirements for obtaining Facebook account information, and the defendant is no longer limited to obtaining publicly posted information. In cases where the Plaintiff alleges that their personal injuries have had an effect on their activities of daily life (such as socializing, vacations, sports activities, etc.) it seems likely that a Court will order that any pre- and post-accident photographs (whether public or private) of those activities posted on Facebook be disclosed, subject to limitations of disclosure of private or sensitive materials, such as photographs depicting nudity or romantic encounters, or temporal limitations.