(607) 988-131 Amber@chrisbrownlaw.com

Discovery is constantly changing in many areas of law. Recently, it hinges on Social Media and new Technology. As we all know almost everything is video recorded or posted online these days, now (most of it) it officially makes its way to the court room.

If you are the subject of a car accident injury, motorcycle accident injury, or other personal injury, you should be aware of the new discovery laws.

New Discovery Laws. Is Social Media Private?

The law has steady since 2013 when the Court in Tapp v. New York State Urban Dev., 102 A.D.3d 620 (1st Dept. 2013) ruled that discovery or “disclosure” of a the plaintiff’s social media platforms will only be admissible if the conduct on the social media contradicts with their alleged losses, disabilities, or limitations.

This decision was recently re-visited in Forman v. Henkin, 30 N.Y.3d 656 (2018) where the defendant alleged that the plaintiff’s private portion of her Facebook account must contain important material and information in regards to her allegation that her life is now severely limited due to injury.

The court found in Forman that “disclosure turns on the extent to which some of the information sought is already accessible—and not, as it should, on whether it is ‘material and necessary … .’” Noting that “the purpose of discovery is to determine if material relevant to a claim or defense exists,” the court rejected the notion that the account holder’s privacy settings “govern the scope of disclosure of social media materials” ruling:

“Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court.”

Thus, the court rejected the recent notion that the Discovery rules only applies to ‘contradictory’ Discovery and now utilizes a balancing test where the cited material should be analyzed for relevance. This 2 part balancing test is as follows:

  1. First, the courts need to “consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found” in the social media account. Forman v. Henkin, 30 N.Y.3d 656 (2018)
  2. Next, the courts needs to weigh the “utility of the information” against privacy concerns and issue “an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials.” Forman v. Henkin, 30 N.Y.3d 656 (2018)

Chris Brown is an experienced Personal Injury lawyer with Offices in Binghamton, New York. Attorney Brown only seeks Maximum Awards for his clients. Contact Chris today at (607) 988-3131 to see how we can help you win your case.