Facebook And Civil Discovery

A contribution to the emerging law of Facebook from the New York Appellate Division for the First Judicial Department.

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.

The majority

…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 AD2d 45, 56 [1st Dept [*3]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 NY3d 547 [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.

The dissent

There are two aspects of these previous rulings that are problematic: first, the showing necessary to obtain discovery of relevant information posted on Facebook or other social networking sites, and second, the procedure requiring that once a threshold showing is made, the trial court must conduct an in camera review of the posted contents in each case to ensure that the defendant’s access is limited to relevant information. In view of how recently our initial rulings on the subject were issued, it makes sense to revisit those initial rulings sooner rather than later; in any event, the topic is too new to warrant rigid adherence at this time to our initial rulings under the doctrine of stare decisis…

The majority suggests that the doctrine of stare decisis precludes us from altering our previous rulings. However, in my view this so-called “well-settled body of case law” is not so long-established that it is deserving of immutable stare decisis treatment. “[T]he relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned” (Montejo v Louisiana, 556 US 778, 792-793 [2009]). Not only are the precedents under consideration here only a few years old, but they concern social networking practices that are still in the process of developing. Under these circumstances, the relationship of social media and thelaw ought to be flexible, open to discussion and re-examination, rather than bound by our initial views regarding the optimal procedure to be used.

In addition to relying on stare decisis, the majority concludes that there is no need to “alter the existing legal framework.” Little is said about how the existing decisions have unfairly created a rule of judicial protectionism for the digital messages and images created by social networking site users, in contrast to how discovery of tangible documents is treated under the CPLR.

In this context — the area where litigation and social media converge — it is important to keep in mind that in recent years social media profiles have become virtual windows into subscribers’ lives. The breadth of information posted by many people on a daily basis creates ongoing portrayals of those individuals’ lives that are sometimes so detailed that they can rival the defense litigation tool referred to as a “day in the life” surveillance video. And, just as “day in the life” videos are a staple of tort practice (see Ken Strutin, The Use of Social Media in Sentencing Advocacy; Technology Today, NYLJ, Sept. 28, 2010 at 5, col 1), the contents of a self-made portrait of a plaintiff’s day-to-day life may contain information appropriate for discovery in personal injury litigation.

Facebook and other similar social networking sites are so popular that it will soon be uncommon to find a personal injury plaintiff who does not maintain such an on-line presence. We should keep that in mind when unnecessarily creating new discovery procedures for them, especially when those procedures are unduly burdensome on our trial courts.

(Mike Frisch)