Skip to main content

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. 
Labels:

Comments

Post a Comment

Popular posts from this blog

Recent Cases: Appeals Court Reverses Lower Court in Slip and Fall

In a decision issued on March 18, 2015 , a New York appeals court reversed a lower court decision dismissing a slip and fall case. The plaintiff was a 12-year-old boy. He was injured when he slipped and fell on "loose and broken pieces of asphalt" as he was running towards an ice cream truck near an Ikea store in Brooklyn. There were two interesting things about the decision. First, like many slip and fall cases, the case turned on constructive notice--how long was the loose/broken asphalt on the ground before the accident so that the defendants should have seen it and corrected the dangerous condition? The appeals court said the defendants failed to show when they last cleaned or inspected the area, so they did not establish lack of constructive notice. The more interesting thing is that apparently the boy told staff at the hospital where he was taken that he tripped over his shoelaces. The defendants found this in the hospital records and basically said, "Ha! He di...
Post a Comment
Read more

Insurance Companies Trying to Gag Superstorm Sandy Victims?

As reported in several news articles ( this one  is free), in the aftermath of superstorm Sandy, engineering firms were hired by insurance companies to inspect the homes of people making claims for flood damage.  There have been allegations that two of the engineering firms, U.S. Forensic out of Louisiana, and GEB HiRise out of Uniondale, forged property damage reports in order to deny claims. The NY State Attorney General is investigating those allegations and wants to talk to the homeowners.  At the same time, there are about 1,800 lawsuits in federal court involving the insurance coverage claims. A three-judge panel is trying to expedite resolution of the cases.  Last week it was revealed that one of the insurance companies, The Standard Fire Insurance Company, which is a subsidiary of Travelers Insurance, drafted language in a settlement document saying that any homeowner who accepts a payout of their claims cannot cooperate with the criminal invest...
Post a Comment
Read more

Consumer Fraud: Dog "Rescue" Operation Shut Down and Ordered to Pay Restitution

News 12 recently had a story  about a Calverton dog "rescue" operation that was shut down and ordered to repay $24,000 in restitution for "selling" sick dogs. This was a type of fraud on consumers. The allegations  were that the two women who operated Precious Pups Rescue "pulled"/obtained dogs that had health issues from in-state and out-of-state shelters, then sold the dogs to consumers by way of "adoption fees" or "donations" of $200 to $600 per dog. The owners of Precious Pups Rescue told consumers that the dogs were healthy  and had been checked out by a vet when that was not true. The new owners were then faced with thousands of dollars in vet bills: Zambito and Torrillo-Hooghkirk sold consumers dogs that they claimed were healthy, vaccinated, spayed or neutered, and evaluated by a veterinarian, when in fact, they were not. In fact, the dogs had visible signs of illness, such as coughing, scratching, matting and sores. After...
Post a Comment
Read more