Professor Agnieszka McPeak Cited in New York Court of Appeals Case on Social Media Discovery
by Diana Case | March 15, 2018
Professor Agnieszka McPeak’s 2013 Wake Forest Law Review article, The Facebook Digital Footprint: Paving Fair and Consistent Pathways to Civil Discovery of Social Media Data, was recently cited in the New York Court of Appeals case, Kelly Forman v. Mark Henkin.
The case involved the disclosure of materials from a private Facebook account. Forman accused Henkin of negligence and alleged she was seriously injured after falling from one of his horses. She claimed her injuries resulted in significant physical and cognitive impairments. Forman was previously active on Facebook, but deactivated her account following the accident. Henkin sought authorization to her Facebook account to identify pre- and post-accident photos and posts that might support his defense. Forman argued the disclosure of these social media materials constituted an invasion of privacy.
In 2014, a lower court ruling granted the motion to limited access to Forman’s Facebook account, but did not order the disclosure of written posts. A state appeals court further limited disclosure to only those photographs planning to be introduced at trial. On February 13, 2018, the state’s highest court voted 7-0 to reinstate the trial judge’s ruling—citing social media content might yield evidence relevant to the case.
“Information that a person may consider private, like tax records or health history, is still discoverable under civil discovery rules,” said Professor McPeak. “This means that, when private information is relevant to a civil case, it may very well have to be handed over for potential use at trial. The same is true for content on Facebook or other social media platforms. Users may rely on settings to mark something as 'private,' but this does not mean what they post is shielded from discovery.”
“The court in Forman v. Henkin clarified an unsettled area of law by eliminating an unwarranted threshold in social media discovery,” she added. “It rejected the idea that the party seeking discovery must produce relevant, public social media content before getting access to private content.”