On February 13, 2018, the Court of Appeals in Forman v. Henkin, reversed the appellate court’s decision and reinstated the trial court’s decision finding that the appellate division erroneously applied a heighten threshold for the production of social media records. In doing so, the Court of Appeal emphasized the standard for any materials sought in a personal injury action – there would be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof. The Court noted that standard embodied by statute provides for liberal discovery that encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise. The Court also noted that while the right to disclosure is broad it is not unlimited. Therefore, courts must evaluate the materials sought to be disclosed on a case-by-case basis. A request for disclosure must be appropriately tailored and reasonably calculated to yield relevant information. The Court also found that the mere commencement of a personal injury action does not render a party’s entire Facebook account automatically discoverable. Rather, court must address disputes over the scope of social medial discovery by considering the nature of the event giving rise to the case, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, 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.
