New York’s Highest Court Holds Some, But Not All, Facebook Photos Are Discoverable

On February 13, the New York Court of Appeals, that state’s highest court, held in Forman v. Henkin that, for materials on the plaintiff’s Facebook account to be discoverable, the threshold inquiry was whether they were “reasonably calculated to yield information that is ‘material and necessary.'” Irrelevant to the inquiry is the privacy settings of that material. The trial court had granted the defendant’s motion to compel the production of Plaintiff’s relevant Facebook photos posted prior to and after the accident, even those posted “privately.” The appellate court limited the scope of the discovery order, but the Court of Appeals reversed and reinstated Supreme Court’s order.

The Court of Appeals’ opinion rejects the notion that Facebook’s “privacy” setting governs the scope of discoverable materials in personal injury lawsuits, but it expressly does not go so far as to say that someone’s entire Facebook account is automatically discoverable in personal injury lawsuits.

Additional Reading

Not all private social media photos are subject to discovery, but some may be, says New York court, ABA Journal, February 14, 2018

Photo Credit: Gil C /