On Feb. 13, 2018, the New York Court of Appeals made it very clear in Forman v. Henkin that even materials considered “private” on Facebook can actually be subject to discovery during a litigation. The Court imposed only one limitation: these materials must be relevant to the issue in controversy in the litigation. If that is the case, your privacy suddenly disappears.
What is relevant to the issue in controversy?
Basically everything if you are suing to recover damages alleging a personal injury. All the pictures, videos and posts of your daily lifestyle become relevant and subject to discovery. Whether you are simply posting about you cooking, having a drink with your friends or going on your typical vacation in the Bahamas, these are all materials that could be discussed in an open courtroom by judges, jurors and lawyers.
Can you save yourself by setting your profile as private?
Absolutely not. That’s exactly what happened to the plaintiff in Forman where, despite having her account set to “private” before the litigation started, the Court found the distinction completely irrelevant. The Court explained that allowing the distinction between public and profile in regards to discovery would allow “the account holder to unilaterally obstruct disclosure merely by manipulating privacy settings.” The focus should be exclusively on whether the information is material and necessary in such a lawsuit by operating a case-by- case analysis.
What about your private messages?
Here is where it gets interesting. In Forman, the New York highest court left that issue unresolved. In fact, the New York Supreme Court denied access to the content of plaintiff’s messages and the defendant failed to object. Therefore, the court could not reach that issue. While going through someone’s private messages seems unethical and intrusive, an argument can certainly be made that private messages on social media fit the category of relevant to the issue in controversy. Value your privacy and be smart on your social media, especially if you are currently involved in a lawsuit.