Privacy and Social Media: How Your “Private” Content is Still Discoverable in a Lawsuit.

With all of the “fake news” making history in our world, it is important to remember that, as ubiquitous as Facebook may be, what you post may not be so “fake” when it comes to your personal litigation position.   If you have a lawsuit, whether it involves claims for personal injuries, or adverse possession, your postings on Facebook may become more public than you think.

Many social media users change their Facebook to “private,” in the erroneous attempt to remain “private,” assuming that their posts are private, viewable by themselves and selected “friends.”  The same goes for “private” messages shared over Facebook messenger and their selected recipient.

In today’s social media frenzied world, however, Facebook posts and messages may not be so “private” if they tend to prove or disprove claims you make in a court case.   In that regard, New York State’s highest appellate court recently ruled that “private” social media posts, particularly Facebook posts can be requested and made available to a court in “discovery,” the pre-trial procedure where each party requests evidence from the other.

In Forman v. Henkin, 2018 N.Y., the New York State Court of Appeals unanimously held that even materials deemed “private” by a user on Facebook can be accessed in discovery.  The plaintiff, Kelly Forman, sued the owner of a horse which she fell from, suffering serious brain and spinal injuries.  At issue were photographs of the plaintiff’s pre-accident lifestyle that were testified to during deposition.  Forman testified that, as a result of her accident, she could no longer use a computer.  Defense counsel moved to compel discovery of her private Facebook account, arguing it was important to her credibility.   Specifically, defense counsel initially requested timestamps of private Facebook messages to prove that the plaintiff took a while to type responses to questions as initially claimed.  After concluding that the timestamp data could not be given over without revealing the content of the message, the Court compelled many of the messages to be turned over too.

In its decision, the Court of Appeals reversed an earlier restriction imposed by a lower court on the scope of the discovery, allowing all applicable materials (even those deemed private), widening the scope of the release beyond what the Defendant initially requested.  The test established in 1968 by the court calls for one of “usefulness and reason.” As Chief Judge Janet DiFiore wrote, usefulness is to be “interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason.”

The Bottom Line– This decision, one of the first the Court of Appeals has issued on discovery in the digital age, means that if you are involved in a legal proceeding where you are making certain claims about physical or mental condition, your “private” content might support or contradict your testimony at deposition.  This isn’t to say that your entire Facebook is subject to search once you file a personal injury suit, and content must be relevant to the case, but, as the Forman case, demonstrates, discovery requests can be sweeping and granted.  Indeed, it is not unusual or unethical for Defense attorneys to view the public content of  on-line social media accounts like Facebook.

If you are thinking about filing a lawsuit, particularly a personal injury lawsuit, you should be aware of the potential for your private Facebook posts and messages to be made available, even in situations where just timestamps of messages might be requested.  Obviously, the potential for every post and private message to appear in court is a distinct possibility, and you should discuss this with your attorney BEFORE it becomes an issue in the overall suit.