While making your social media account "private" limits who can view your content online and is generally advisable, it will no longer prevent disclosure of certain posts, photographs and messages in a personal injury lawsuit.
The New York Court of Appeals, the highest court in the state, held in a recent unanimous decision that a personal injury plaintiff's "private" Facebook account is subject to disclosure if the content sought is relevant to the issues being litigated. Forman v. Henkin, 30 NY3d 656 (2018).
In doing so, the Court rejected the notion that an account holder can govern the scope of disclosure by way of their privacy settings, i.e. making an account "private" rather than "public."
The Forman Case
In Forman, the plaintiff suffered spinal and brain injuries resulting in cognitive defects. During her deposition, plaintiff stated she had a Facebook account to which she posted photographs showing her pre-accident lifestyle and that she deactivated the account approximately six months after the accident. Subsequently, the defendant requested plaintiff's entire "private" Facebook account for posts both pre and post-accident.
The Court of Appeals required plaintiff provide all pre-accident photographs of herself privately posted on Facebook, and all post-accident photographs posted of herself that did not depict nudity or romantic encounters because it was reasonable to infer from her regular pre-accident posting of her activities that she likely would have done so post-accident as well.
The Court of Appeals also required her to provide the number of characters or words in all private postings because this data was potentially relevant to plaintiff's claim she suffered cognitive injuries that made it difficult for her to write and use a computer.
The Court of Appeals did not require her to provide the content of postings that were posted after the accident because defendant failed to raise the issue of the trial court's denial of access to the content of these postings on appeal.
What This Means For Personal Injury Plaintiffs
The Court made clear that a personal injury lawsuit does not automatically make a plaintiff's entire Facebook account automatically discoverable.
Defendants are required to make requests that are "appropriately tailored" and "reasonably calculated to yield relevant information." However, any content that may be relevant to the lawsuit is discoverable even if that content is "private", personal, or embarrassing. In a personal injury lawsuit for example, this may include content that shows or describes a plaintiff's physical condition or describes a plaintiff's activities.
Remember, if you post information online for people to see you may be asked about it and have to disclose it if you become a plaintiff in a personal injury lawsuit.
It is always a good idea to keep social media sites private. If you are currently a personal injury plaintiff and your social media sites are public, you should make your social media sites private immediately.
However, it is very important that you know you cannot delete any content once you are injured and think you may file lawsuit. As soon as you are injured and think you may file a lawsuit, you are required to preserve any content you have posted in the past and going forward as well as any messages you have sent and received that may be relevant to the lawsuit.
If you have any questions on how to handle your social media, you should contact your attorney to make sure you are complying with these requirements.