You May Be Forced to Turn Over Your "Private" Facebook Photos (or even Messages) in a Lawsuit

So held New York's highest court on February 13, 2018. The case involved personal injuries. The plaintiff alleges she fell off a horse owned by the defendant, which caused the plaintiff severe spinal and brain injuries. She claims she now has trouble writing emails and forming coherent sentences, among other cognitive problems.

The plaintiff testified at a deposition that she had had a Facebook account in the past, which contained lots of "private" photos (of her) and posts and messages before and after the accident. But she deleted the account six months after the accident.

Defendant's attorneys wanted an authorization to see her entire Facebook account (photos, posts, messages, everything), so they could compare her quality of life before and after the accident. But she refused to give the defendant access to her account.

After motions and appeals, the Court of Appeals has now ordered the plaintiff to turn over (1) all private Facebook photos taken before the accident that she intends to use at trial; (2) all private Facebook photos taken after the accident that don't show nudity or romantic encounters; and (3) an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages (but not the content of those messages).

The plaintiff argued this was an invasion of privacy, which is why she made all those things "private" in the first place. However, the high court rejected the argument that making posts or photos "private" on Facebook shields them from discovery in a lawsuit:

Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private. But even private materials may be subject to discovery if they are relevant ... For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information. 

The Court said this doesn't mean everything on a person's Facebook account is automatically fair game. Each situation should be evaluated on a case by case basis, and courts should be mindful about protecting truly private/embarrassing information that's not relevant to the issues in the case. 

Defendant's attorneys made one goof. They originally wanted to see the content of all pre and post-accident private Facebook posts and messages. The trial court said no, you only get to see how many messages she sent after the accident, how long it took her to write them, etc., but not what she actually said. The defendant never appealed that part of the trial court's decision. That was the goof. 

Analyzing this, the Court of Appeals all but said:  If you had appealed that part of the decision denying you access to the contents of the messages, you probably would've won since the contents of her pre and post-accident messages are likely relevant to whether she indeed has trouble using a computer, forming sentences, etc., as she claims. Or maybe her messages show that she has a far more active lifestyle than she alleges. But since you never appealed that issue, we have no power to help you. 

While this was a personal injury case, it will surely have implications in many other types of cases where intended "private" communications on social media by and between people could contain relevant evidence.