United States: New York Team Expands "Forman Doctrine" With Favorable Rulings On Plaintiffs' Social Media, Private Journals

Lewis Brisbois' New York team recently secured a dismissal and an adverse-inference charge in two cases that demonstrate the continued importance of obtaining discovery regarding social media and plaintiffs' private journals, respectively. In King v. Shabab and Clarke v. Povella, New York Partners David L. Rosenthal, Nicholas P. Hurzeler and Jennifer R. Harris, with Associates Briana O'Connor and Dean Pillarella, argued that a straightforward application of the principles set forth in the New York Court of Appeals' decision in Forman v. Henkin, 30 N.Y.3d 656, 666 (2018) warranted discovery sanctions.

King v. Shabab

The decision in Forman holds that that private social media posts are generally discoverable. The test for discoverability is “not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.” Thus, the Forman doctrine can be used to probe the credibility of a plaintiff's claim, typically in the area of damages, so long as the defense can develop a rationale as to why the materials might contain information “relevant” to a plaintiff's damages claims.

In King, Messrs. Rosenthal and Hurzeler, with Ms. O'Connor, secured dismissal of a motor vehicle accident lawsuit venued in New York Supreme Court, Kings County. The plaintiff claimed a traumatic brain injury (TBI), shoulder tears requiring arthroscopic surgery, and seven figures in past and future medical treatment. Upon learning that the plaintiff maintained an Instagram account, Lewis Brisbois served a request for authorizations upon the plaintiff, demanding access to the account. When the plaintiff failed to provide the authorizations, Lewis Brisbois, citing Forman, moved to compel their production. The trial court granted the motion and ordered the plaintiff to authorize release of the records, as it was found that the plaintiff's social media postings were relevant to his TBI claim. The plaintiff did not comply, prompting the Lewis Brisbois team to file a second and, ultimately, third motion. As a result, the trial court ordered that that the plaintiff must produce the requested authorizations by a date certain or be “precluded from testifying or offering evidence at trial.”

The plaintiff then provided an authorization, but, when it was processed by the Lewis Brisbois team, they were advised by Instagram that it was not for an active username and that no records were available. The team subsequently conducted a non-party deposition of the plaintiff's ex-wife and learned that the plaintiff had used a different username for his Instagram account and gained access to it that day. However, the next day, the plaintiff had deleted the account. In the meantime, Lewis Brisbois filed a motion seeking spoliation sanctions and dismissal of the plaintiff's complaint for “willful and contumacious” failure to comply with the court's conditional preclusion order, arguing that the plaintiff's repeated and intentional disobedience of the court's orders directing the exchange of a duly executed authorization for his Instagram account records demonstrated “willful and contumacious” conduct as a matter of law. See Corex-SPA v. Janel Group of N.Y., Inc., 156 A.D.3d 599, 601 (2nd Dept. 2017); Watson v. Hall, 43 A.D.3d 435 (2nd Dept. 2017).

The court agreed with the motion and ordered that “plaintiff is precluded from testifying or offering evidence at trial; therefore, defendant's motion to dismiss pursuant to NY CPLR 3124 and 3126 is granted.” The plaintiff's settlement demand was eight figures.

Clarke v. Povella

In Clarke, Mr. Pillarella obtained an adverse inference charge from the New York Appellate Division in a case where the plaintiff claimed significant emotional/psychological injuries and “loss of enjoyment of life” as a result of allegedly being struck by the defendants' vehicle. At her deposition, the plaintiff testified that her treating psychologist had her document her “feelings” in journals as a tool of therapy. As a result, Lewis Brisbois, citing Forman, demanded that the plaintiff disclose the journals for review by the defendants' expert. The plaintiff adamantly refused and ultimately claimed to have “lost” her journals. This resulted in our office's moving for the imposition of spoliation sanctions against the plaintiff.

The New York Supreme Court, Bronx County initially denied the motion, ruling that private journals are beyond the scope of disclosure. On appeal, New York's Appellate Division, First Department, agreed with the defense that, notwithstanding the plaintiff's privacy concerns, under Forman, the “defendant was not required to make any special threshold burden to obtain relevant discovery.” The Appellate Division also had no qualms in extending Forman to hold that “plaintiff's journal entries were not beyond the scope of disclosure in this case where plaintiff is asserting claims for emotional and psychological injuries.”

Because the Appellate Division therefore found that the plaintiff spoliated relevant evidence in “losing” her private journals, it modified the trial court's order and granted Lewis Brisbois' motion seeking spoliation sanctions to the extent of awarding the defendants an adverse-inference charge. As a result of the adverse-inference charge, should the case proceed to trial, the trial court will instruct the jury that the plaintiff's journals contained information that would have benefitted the defendants and that the journals' “loss” may be considered in evaluating the plaintiff's credibility. Mr. Hurzeler and Ms. Harris drafted the motion papers and Mr. Pillarella handled the appeal.

Takeaway

King and Clarke demonstrate that plaintiffs cannot avoid providing defendants with crucial disclosures by making a blanket objection that the matters sought are “private” – even with respect to social media posts and private journals. Under Forman, the only relevant inquiry is whether the materials demanded are “reasonably calculated to contain relevant information.” When a plaintiff fails to disclose such information, spoliation sanctions are a powerful tool that can help level the playing field.

The trial court's Decision and Order in King can be found at NYSCEF Index No. 52294/2018, doc. no. 583. The Appellate Division's Decision and Order in Clarke can be found at Clarke v. Povella, 2022 NY Slip Op 06745 (1st Dep't 2022).

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