Written by Andy Webb, Esq.
Edited by Gary Reinhardt, Esq.
According to Facebook, more than 350 million photos are uploaded and 55 million status updates are posted to its site every day. Often, these photos and status updates, along with other information voluntarily posted on Facebook, are significant tools in defending against a plaintiff’s claims. However, due to Facebook’s privacy settings, a party’s Facebook posts are sometimes limited or completely obscured from public view. When this is the case, an attorney must use the discovery process in an attempt to obtain this possibly valuable Facebook information.
In the context of litigation, discovery devices such as interrogatories and requests for production can be used to obtain a party’s Facebook information, but these tools place limits on the content and amount of information available. Generally, discovery is limited to material “relevant to the subject matter” of the litigation, if that information “appears reasonably calculated to lead to the discovery of admissible evidence.” Rule 4:1(b)(1) Rules of the Supreme Court of Virginia. This general standard places a burden on the party seeking the production of Facebook information. The party must show a factual predicate between the Facebook information and the issues of the case.
Virginia courts applying this factual predicate standard in the Facebook context have looked at the facts of each case independently to determine if a request for Facebook information is relevant. For example, the Greensville County Circuit Court found a defendant established the necessary factual predicate by showing that drinking and partying depicted in plaintiff’s Facebook pictures could be relevant in evaluating the true extent of plaintiff’s alleged long-term injuries. James v. Edwards, 85 Va. Cir. 139, 140-41 (Greensville 2012). In contrast, the Fairfax County Circuit Court found a defendant did not sufficiently establish a factual predicate when it sought a party’s social media information to help prove employment when the party’s employment was not at issue in the case. Reading & Language Learning Ctr. v. Sturgill, 94 Va. Cir. 94, 100 (Fairfax 2016)
But what evidence is necessary to establish this factual predicate when the information is protected by Facebook’s privacy settings? A recent case decided by the highest court for the state of New York, the Court of Appeals of New York, sheds some light on this particular situation. In the case Forman v. Henkin, plaintiff claimed she suffered spinal and traumatic brain injuries resulting in cognitive deficits after she fell from a horse owned by the defendants. 2018 NY Slip Op 01015 (Feb. 13, 2018). During her deposition the plaintiff stated that, prior to the accident, she posted “a lot” of photos showing her pre-accident active lifestyle, but after the accident was unable to participate in many of the activities she previously enjoyed. The plaintiff also testified that she had difficulty using a computer and composing coherent messages as a result of her injuries. Because of this difficulty, she chose to deactivate her Facebook account six months after the fall and before initiating litigation.
The defendants sought the production of the plaintiff’s entire Facebook profile, claiming that it would contain evidence relating to her activities, both before and for the six months after the accident. The plaintiff opposed the production by arguing the defendants failed to establish the necessary factual predicate for access to the private portion of her Facebook account because the single photo available on the public portion of her account did not contradict plaintiff’s claims or deposition testimony.
The New York Court of Appeals held that when determining the proper scope of social media discovery production, a court should take a close look at the facts giving rise to the litigation, the injuries claimed, and the information known about the content of the social media profile of which production is sought. These considerations help a court determine whether relevant material is likely to be found on the account. The New York Court of Appeals acknowledged that only allowing production when the contents of the Facebook page are already known would allow the account holder to “unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the material on the public portion of the account.”
However, the Court also acknowledged that requiring a party to disclose its entire Facebook account “is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic,” which far exceeds the bounds of discovery. Therefore, the Court, “balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder,” determined that a court should tailor its required disclosure of social media data to that which identifies the types of materials that must be disclosed while avoiding disclosure of non-relevant materials.
Applying this standard to the case before it, the New York Court of Appeals found the plaintiff’s deposition testimony sufficient to establish the likelihood that relevant information existed on her Facebook profile, meeting the factual predicate standard. The New York Court of Appeals also found the trial court’s limitation on time and exclusion of photos which showed the plaintiff’s romantic relationships were proper, as these limitations protected the plaintiff’s privacy interests.
Despite the fact that Forman v. Henkin is a New York case, it provides guidance on how and when a party may obtain information contained in a private Facebook account. When a party has a private account, a demand for the information contained within the account, without any evidence of its contents, will likely be denied. Therefore, it is important to use other discovery methods, such as interrogatories and depositions, to learn about an individual’s Facebook content and tailor requests to fit that evidence.