Forman v. Henkin

• Decision Date: 17 December 2015
• Parties: Kelly FORMAN, Plaintiff–Appellant, v. Mark HENKIN, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 529

22 N.Y.S.3d 178

Kelly FORMAN, Plaintiff–Appellant,

v.Mark HENKIN, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 17, 2015.

Ronemus & Vilensky, New York (Chandra Whalen of counsel), for appellant.

Wade Clark Mulcahy, New York (Brian Gibbons of counsel), for respondent.

ACOSTA, J.P., SAXE, MOSKOWITZ, RICHTER, KAPNICK, JJ.

Order, Supreme Court, New York County (Lucy Billings, J.), entered March 19, 2014, which, 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, modified, on the law and the facts, to vacate 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, and otherwise affirmed, without costs.

In this personal injury action, plaintiff alleges that while riding one of defendant's horses, the stirrup leather attached to the saddle broke, causing her to lose her balance and fall to the ground. Plaintiff claims that defendant was negligent because, inter alia, he failed to properly prepare the horse for riding, and neglected to maintain and inspect the equipment. Plaintiff alleges that the accident resulted in cognitive and physical injuries that have limited her ability to participate in social and recreational activities. At her deposition, plaintiff testified that she maintained and posted to a Facebook account prior to the accident, but deactivated the account at some point after.

Defendant sought an order compelling plaintiff to provide an unlimited authorization to obtain records from her Facebook account, including all photographs, status updates and instant messages. The motion court granted the motion to the extent of directing plaintiff to produce: (a) all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial; (b) all photographs of herself privately posted on Facebook after the accident that do not show nudity or romantic encounters; and (c) authorizations for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in those messages. Plaintiff now appeals.

CPLR 3101(a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." In determining whether the information sought is subject to discovery, "[t]he test is one of usefulness and reason" (Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968] ). " ‘It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims' " (Vyas v. Campbell, 4 A.D.3d 417, 418, 771 N.Y.S.2d 375 [2d Dept.2004], quoting Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421, 541 N.Y.S.2d 30 [2d Dept.1989] ; see also GS Plasticos Limitada v. Bureau Veritas Consumer Prods. Servs., Inc., 112 A.D.3d 539, 540, 977 N.Y.S.2d 245 [1st Dept.2013] [sufficient factual predicate required for discovery demands]; Sexter v. Kimmelman, Sexter, Warmflash & Leitner, 277 A.D.2d 186, 716 N.Y.S.2d 661 [1st Dept.2000] ). Discovery demands are improper if they are based upon " ‘hypothetical speculations calculated to justify a fishing expedition’ " (Budano v. Gurdon, 97 A.D.3d 497, 499, 948 N.Y.S.2d 612 [1st Dept.2012], quoting Manley v. New York City Hous. Auth., 190 A.D.2d 600, 601, 593 N.Y.S.2d 808 [1st Dept.1993] ).

This Court has consistently applied these settled principles in the context of discovery requests seeking a party's social media information. For example, in Tapp v. New York State Urban Dev. Corp., 102 A.D.3d 620, 958 N.Y.S.2d 392 (1st Dept.2013), we denied the defendants' request for an authorization for the plaintiff's Facebook records, concluding that the mere fact that the plaintiff used Facebook was an insufficient basis to provide the defendant with access to the account. Likewise, in Pecile v. Titan Capital Group, LLC, 113 A.D.3d 526, 979 N.Y.S.2d 303 (1st Dept.2014), we concluded that vague and generalized assertions that information in the plaintiff's social media sites might contradict the plaintiff's claims of emotional distress were not a proper basis for disclosure (see also Abrams v. Pecile, 83 A.D.3d 527, 922 N.Y.S.2d 16 (1st Dept.2011) [rejecting the defendant's demand for access to the plaintiff's social networking sites because there was no showing that information in those accounts would lead to relevant evidence bearing on the plaintiff's claims] ).

Other Departments of the Appellate Division, consistent with well-established case law governing disclosure, have required some threshold showing before allowing access to a party's private social media information (see e.g. Richards v. Hertz Corp., 100 A.D.3d 728, 730–731, 953 N.Y.S.2d 654 [2d Dept.2012] [striking demand for Facebook information of one of the plaintiffs because there was no showing that the disclosure of that material would result in disclosure of relevant evidence or would be reasonably calculated to lead to discovery of information bearing on the claim]; McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 1525, 910 N.Y.S.2d 614 [4th Dept.2010] [denying authorization for the plaintiff's Facebook information where the defendant failed to establish a factual predicate of relevancy, and characterizing the request as "a fishing expedition ... based on the mere hope of finding relevant evidence"] [internal quotation marks omitted] ). Guided by these principles, we conclude that defendant has failed to establish entitlement to either plaintiff's private Facebook photographs, or information about the times and length of plaintiff's private Facebook messages. The fact that plaintiff had previously used Facebook to post pictures of herself or to send messages is insufficient to warrant discovery of this information (see Tapp, 102 A.D.3d at 620, 958 N.Y.S.2d 392 [the plaintiff's mere utilization of a Facebook account is not enough] ). Likewise, defendant's speculation that the requested information might be relevant to rebut plaintiff's claims of injury or disability is not a proper basis for requiring access to plaintiff's Facebook account (see id. at 621, 958 N.Y.S.2d 392 [the defendants' argument that the plaintiff's Facebook postings might reveal daily activities that contradict claims of disability is "nothing more than a request for permission to conduct a fishing expedition"] [internal quotation marks omitted]; Pecile, 113 A.D.3d at 527, 979 N.Y.S.2d 303 [vague and generalized assertions that the information sought might conflict with the plaintiff's claims of emotional distress insufficient] ).¹

However, in accordance with standard pretrial procedures, plaintiff must provide defendant with all photographs of herself posted on Facebook, either before or after the accident, that she intends to use at trial. Plaintiff concedes that she cannot use these photographs at trial without having first disclosed them to defendant.

We disagree with the dissent's position that we should reconsider the well-settled body of case law, from both this Court and other Departments, governing the disclosure of social media information. Both parties here agree with the general legal principles set forth in the existing case law and differ only as to the application of those principles to the specific facts of this case. Neither party asks us to revisit our controlling precedent, and the doctrine of stare decisis requires us to adhere to our prior decisions (see People v. Aarons, 305 A.D.2d 45, 56, 759 N.Y.S.2d 20 [1st Dept. 2003] ["stare decisis stands as a check on a court's temptation to overrule recent precedent. Only compelling circumstances should require us to depart from this doctrine"], affd. 2 N.Y.3d 547, 780 N.Y.S.2d 533, 813 N.E.2d 613 [2004] ). Although we agree with the dissent that social media is constantly evolving, there is no reason to alter the existing legal framework simply because the potential exists that new social network practices may surface. Furthermore, there is no dispute that the features of Facebook at issue here (i.e., the ability to post photographs and send messages) have been around for many years.

Contrary to the dissent's view, this Court's prior decisions do not stand for the proposition that different discovery rules exist for social media information. The discovery standard we have applied in the social media context is the same as in all other situations—a party must be able to demonstrate that the information sought is likely to result in the disclosure of relevant information bearing on the claims (see e.g. GS Plasticos Limitada, 112 A.D.3d at 540, 977 N.Y.S.2d 245 ; Budano, 97 A.D.3d at 499, 948 N.Y.S.2d 612 ; Sexter, 277 A.D.2d at 187, 716 N.Y.S.2d 661 ; Manley, 190 A.D.2d at 601, 593 N.Y.S.2d 808 ). This threshold factual predicate, or "reasoned basis" in the words of the dissent, stands as a check against parties conducting "fishing expeditions" based on mere speculation (see Devore v. Pfizer Inc., 58 A.D.3d 138, 144, 867 N.Y.S.2d 425 [1st Dept.2008], lv. denied 12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009] [parties cannot use discovery "as a fishing expedition when they cannot set...