Forman v. Henkin

• Decision Date: 13 February 2018
• Docket Number: No. 1,1
• Citation: 30 N.Y.3d 656,93 N.E.3d 882,70 N.Y.S.3d 157
• Parties: Kelly FORMAN, Respondent, v. Mark HENKIN, Appellant.
• Court: New York Court of Appeals Court of Appeals

30 N.Y.3d 656
93 N.E.3d 882
70 N.Y.S.3d 157

Kelly FORMAN, Respondent,
v.
Mark HENKIN, Appellant.

No. 1

Court of Appeals of New York.

Decided February 13, 2018

93 N.E.3d 885

Wade Clark Mulcahy, LLP, New York City (Michael A. Bono, Brian Gibbons and Christopher J. Soverow of counsel), for appellant.

Pollack Pollack Isaac & DeCicco, LLP, New York City (Kenneth J. Gorman and Brian J. Isaac of counsel), and Siegel & Coonerty, LLP, for respondent.

Vincent P. Pozzuto, Defense Association of New York, Inc. (Andrew Zajac, Rona L. Platt, Brendan T. Fitzpatrick and Amanda L. Nelson of counsel), for Defense Association of New York, Inc., amicus curiae.

30 N.Y.3d 659

OPINION OF THE COURT

DiFIORE, Chief Judge:

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,

93 N.E.3d 886

70 N.Y.S.3d 161

attend the theater, or go boating, contending that photographs and messages she posted on Facebook would

30 N.Y.3d 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 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.

Supreme Court granted the motion to compel to the limited extent of directing plaintiff to produce all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages. Supreme Court did not order disclosure of the content of any of plaintiff's written Facebook posts, whether authored before or after the accident.

Although defendant was denied much of the disclosure sought in the motion to compel, only plaintiff appealed to the Appellate Division.¹ On that appeal, the Court modified by limiting disclosure to photographs posted on Facebook that

30 N.Y.3d 661

plaintiff intended to introduce at trial (whether pre–or post-accident) and eliminating the authorization permitting defendant to obtain data relating to post-accident messages, and otherwise affirmed ( 134 A.D.3d 529, 22 N.Y.S.3d 178 [2015] ). Two Justices dissented, concluding defendant was entitled to broader access to plaintiff's Facebook account and calling for reconsideration of that Court's recent precedent addressing disclosure of social media information as unduly restrictive and inconsistent with New York's policy of open discovery. The Appellate Division granted defendant leave to appeal to this Court, asking whether its order was properly made. We reverse, reinstate Supreme Court's order and answer that question in the negative.

93 N.E.3d 887

70 N.Y.S.3d 162

Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." We have emphasized that "[t]he words, ‘material and necessary’, are ... to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The 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] ; see also Andon v. 302–304 Mott St. Assoc. , 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ). A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is "material and necessary"—i.e., relevant—regardless of whether discovery is sought from another party (see CPLR 3101[a][1] ) or a nonparty ( CPLR 3101[a][4] ; see e.g. Matter of Kapon v. Koch , 23 N.Y.3d 32, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] ). The "statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise" ( Spectrum Sys. Intl. Corp. v. Chemical Bank , 78 N.Y.2d 371, 376, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991] ).

The right to disclosure, although broad, is not unlimited. CPLR 3101 itself "establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery ( CPLR 3101[b] ); attorney's

30 N.Y.3d 662

work product, also absolutely immune ( CPLR 3101[c] ); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship" ( Spectrum , at 376–377, 575 N.Y.S.2d 809, 581 N.E.2d 1055 ). The burden of establishing a right to protection under these provisions is with the party asserting it—"the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity" ( id. at 377, 575 N.Y.s.2d 809, 581 N.E.2d 1055 ).

In addition to these restrictions, this Court has recognized that "litigants are not without protection against unnecessarily onerous application of the discovery statutes. Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party" ( Kavanagh v. Ogden Allied Maintenance Corp. , 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998] [citations and internal quotation marks...