Forman v. Henkin

Kelly Forman (plaintiff) sued Mark Henkin (defendant) after falling off a horse that Henkin owned. Forman alleged that she had suffered significant injuries that impaired her ability to continue her preaccident active lifestyle and that made it difficult for her to engage in written and oral communication. Before the accident, Forman maintained a social-media account with Facebook, in which she posted many photographs depicting her active lifestyle; Forman deactivated her Facebook account approximately six months after the accident. Facebook permitted users to distinguish between public material (material that anyone could view) and private material (material that could be viewed only by those granted permission). Pursuant to Civil Practice Law and Rules (CPLR) § 3101(a), Henkin moved to compel full access to Forman’s Facebook account, including private material. Per Henkin, the Facebook account was likely to contain evidence relevant to Forman’s claim that, among other things, she no longer could cook, travel, and participate in sports or easily read, write, or use a computer. The supreme court granted Henkin’s motion in part, allowing Henkin access to the photographs Forman had posted on Facebook (except for photographs showing nudity or romantic encounters). The appellate division reversed in part, requiring Forman to provide access only to any private Facebook photographs that Forman intended to introduce at trial. In doing so, the appellate division ruled that a party seeking private Facebook material must show that the Facebook account contains information contradicting the opposing party’s claim. Henkin appealed, arguing that the appellate division had erred in imposing a heightened discovery threshold for private Facebook material.