NY Court Allows Consideration of Private Facebook Posts

ALBANY, N.Y. (CN) – A woman seeking damages after a horse-riding accident cannot exclude the private contents of her Facebook account from discovery, New York’s highest court ruled Tuesday.

Penned by Chief Judge Janet DiFiore, the 7-0 opinion notes that Kelly Forman made her social-media activity a focus of her claim against horse owner Mark Henkin.

Forman deactivated her Facebook account about six months after she fell from Henkin’s horse in 2011, but she claimed that her pre-accident lifestyle was thoroughly documented by the photographs she posted.

With Forman now claiming that a simple email takes her hours to write, Henkin’s defense team fought in discovery to access all of Forman’s private photos and posts from Facebook.

Forman appealed when the Manhattan Supreme Court ordered her in 2014 to produce a limited number of images and data from her account.

Though Judge Lucy Billings excluded the content of Facebook posts themselves, she said Henkin was entitled to see records showing each time Forman posted a private message after the accident and the number of characters or words in the message.

Billings also directed Forman to produce all of the photographs she posted of herself privately to Facebook if she intends to introduce them at trial, as well as all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters.

In 2015, a lower appeals court sided with Forman that she have to disclose only those photographs from Facebook which she intended to introduce at trial, whether pre- or post-accident.

Throwing that order out on Tuesday, the Court of Appeals reinstated the original order from Billings.

“While Facebook — and sites like it — offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute,” DiFiore wrote.

DiFiore noted that other courts have properly criticized the approach of allowing disclosure only of public Facebook posts and photos because it allows Facebook account holders to “unilaterally obstruct disclosure merely by manipulating ‘privacy’ settings or curating the materials on the public portion of the account.”

While an entire Facebook account is not automatically discoverable, DiFiore emphasized that “even private materials may be subject to discovery if they are relevant.”

Private messages and photos in particular could be helpful where as here a plaintiff argues a change in mental or physical condition.

In Forman’s case, “there was a basis to infer that photographs she posted after the accident might be reflective of her post-accidnt activities and/or limitations,” DiFiore wrote, adding that Forman failed to show why the sought-after materials should be shielded from disclosure.

Likewise, the time stamps “and number of characters in posted Facebook messages would be relevant to Forman’s claim that she suffered cognitive injuries,” DiFiore added.

DiFiore said trial courts should use a case-by-case approach to future litigation, balancing the “potential utility” of sought-after information against privacy and whether the relevant information would likely be found on a Facebook account.

Courts also might need to use temporal limitations in other personal injury cases to examine whether, for instance, photos from many years before an accident would be discoverable.

The ruling also says New York state discovery rules do not require a party to show sought-after items actually exist. “In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence,” DiFiore wrote.

Forman’s attorney Kenneth Gorman declined to comment on the ruling. Henkin’s attorney, Michael Bono of Wade Clark Mulcahy, could not be immediately reached by phone for comment.

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