New York Personal Injury Plaintiff Required to Disclose “Private” Facebook Photos

Social media has become a significant part of many people’s lives.  It allows people to maintain contact with family and reconnect with old friends.  New York personal injury attorneys understand, however, that a social media account can be detrimental to a case.  Defendants often seek the photographs and posts in a plaintiff’s account, as seen in a recent case.

NotebookThe plaintiff filed suit against the defendant for injuries she allegedly sustained when she fell off his horse.  She testified she had previously posted pictures of her active lifestyle on Facebook before the accident, but she had deactivated the account a few months afterward. She stated her injuries caused her difficulty using a computer and writing coherent messages and that it took her hours to write a simple email.

The defendant moved to compel an unlimited authorization for the plaintiff’s entire private Facebook account.  He argued she claimed she could not cook, travel, go to the movies, go boating, and do other specified activities.  He further argued that her Facebook posts would likely be material to her allegations of limitations and her claim that the accident affected her ability to read, write, and use a computer. He noted that the timestamps could show how long it took her to write a post or respond to received messages.

The plaintiff argued the defendant had not established a basis for accessing the parts of her account designated private because the public portion only had one picture, and it did not contradict her claims or testimony.

The trial court ordered disclosure of privately posted photographs before the accident that she planned to use at trial, photographs of herself privately posted after the accident, and an authorization for Facebook to provide records showing the time and the number of characters or words of each message she posted after the accident.  The order excluded photographs containing nudity or depicting romantic encounters from disclosure.

The plaintiff appealed, and the Appellate Division modified the order by limiting disclosure to posted photographs the plaintiff planned to introduce at trial.  It also eliminated the authorization.  The defendant then appealed.

The appeals court noted that CPLR 3101(a) generally applies to disclosure in civil actions, which requires “all matter and material and necessary to the prosecution or defense” to be fully disclosed. Courts have been liberal in interpreting “material and necessary.” The party seeking disclosure must show the request is reasonably calculated to yield relevant information.

Although New York has a policy of open disclosure, certain materials are protected.  Privileged matter and attorney work product do not have to be disclosed.  The other party may obtain trial preparation materials, however, if the seeking party shows a substantial need and undue hardship.  The appeals court also noted that the need for disclosure should be weighed against the burden on the disclosing party.

The defendant argued the Appellate Division erred in basing disclosure on the account holder’s privacy settings.  The plaintiff based her argument on case law that conditioned the discovery of “private” Facebook material on whether the seeking party showed that “public” Facebook material tended to contradict the plaintiff’s allegations in some way. This rule, however, would allow the account holder to obstruct disclosure by changing the privacy settings.  The court rejected the idea that privacy settings controlled the scope of disclosure.

The appeals court noted, however, that a plaintiff’s social media accounts are not automatically discoverable just because they filed a personal injury lawsuit.  Courts should consider the facts and circumstances, as they would with any other discovery dispute.  They should weigh the utility of the information against special privacy concerns or burdens to the account holder and tailor the order to the case.  It may also be appropriate for the court to include limitations based on when the material was posted or created.  Finally, the account holder may seek protection from disclosing sensitive or embarrassing materials that have limited relevance.

The appeals court found the Appellate Division erred in limiting disclosure to the posted photographs the plaintiff planned to use at trial.  The defendant had met his burden of showing the Facebook account was reasonably likely to yield relevant evidence because of the plaintiff’s testimony that she had previously posted photographs that depicted her lifestyle and activities.  The appeals court also found that it was reasonably likely that the timing and number of characters in the messages she posted were relevant to her claims of cognitive injuries limiting her ability to write and use the computer.

The appeals court reversed the Appellate Division order to the extent it was appealed.  The plaintiff did not claim any privilege for the materials, so the appeals court did not remit.

Everyone should remember that even materials posted privately in social media may not remain private.  As this case shows, deactivating the account will not necessarily prevent the required disclosure of its contents.

If you have been injured due to someone else’s negligence, you need a skilled New York premises liability attorney.  Call the Law Offices of Marc S. Albert at 1.855.252.3788 for assistance with your case.

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