By: Wadad Barakat, Member-Candidate, J.D. Candidate, May 2019, St. Thomas University School of Law.

Kelly Forman (“Forman”) sued Mark Henkin (“Henkin”) alleging that his negligence caused her to fall off one of the horses he owns when Henkin provided her a with defective stirrup. Following the fall, Forman suffered permanent physical, mental, and psychological injuries. She was declared brain damaged, which caused her numerous difficulties, such as using a laptop and composing coherent messages.

During a deposition, Forman’s use of Facebook came up when she said she had posted many photos before her accident, but she could not remember whether she had posted photos after the accident. As a result, the defense attorney requested access to Forman’s entire Facebook during discovery stating that all photos were relevant as to her injuries and credibility. When Forman did not comply, the defense filed a Motion to Compel.

The trial court granted the motion, but limited discovery to private photos (not posts) Forman posted on Facebook before and after the accident. It also authorized the release of private messages Forman posted after her accident, including the number of words and characters in the message. Eventually, however, “[t]he appellate judges said even that was too much.”  Discovery was limited to those photos Foreman was planning to use at trial only.

Last week, the New York State Court of Appeals reversed. Writing for the court, Chief Judge Janet DiFiore stated that “it is not up to Forman to determine what Facebook information is germane. Leaving it up to Forman would allow the ‘account holder to unilaterally obstruct disclosure merely by manipulating privacy settings or curating the materials on the public portion of the account.’” Consequently, the New York State Court of Appeals held that private social media posts may be subject to discovery as long as they are relevant to the case. Therefore, the next time you decide to post either a photo or a post in social media, beware that what people perceive to be “private” may, in fact, not be as private as one would like to believe.