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Beware: Your Facebook Posts Can be Held Against You

Until recently, if a party wanted to obtain social media evidence in a lawsuit, New York courts would apply a different standard than for other types of evidence. The idea was to give more protection to online information that was intended to be kept private (or available only to a restricted group of people). The New York Court of Appeals has now ended this special treatment, which means in some cases, it will be easier for a party to find out what has been posted on a private social media account, such as Facebook.

General discovery rules

Generally, the law allows discovery in civil matters of all information reasonably calculated to yield information that is “material and necessary” or relevant, to the defense or prosecution of an action. (See CPLR 3101(a)). Certain categories of communications receive greater protection, such as privileged communications (attorney-client; physician-patient; etc.); attorney work product; and material prepared in litigation. These protections are generally applied based upon a review of the substance of the communication, not the type of communication. In other words, if it is an attorney-client communication, it would be protected regardless of whether the communication took place via phone call, email or letter.

Discovery of social media and other electronic evidence

In recent years, courts have been grappling with how to apply traditional discovery standards in an age where the volume and type of data available electronically has increased significantly. As an example, last year there was a well-publicized dispute over whether Amazon was required to turn over audio recordings from its Amazon Echo device in connection with a murder prosecution.

There have also been many cases of parties seeking access to private postings in the social media sphere. The issue often arises in personal injury litigation, where photographs posted on Facebook can be used to undermine claims of injury, physical limitations, etc.

In prior years, courts, including the New York Appellate Division, First Department, had based their determination regarding discoverability on what privacy settings an account holder had established for their social media account. In order to compel access to postings which had been designated as “private,” the party seeking discovery was required to show that the account holder’s “public” posts contained information that would contradict the injured party’s allegations. This is a different standard than what typically applies when a party is seeking to discover other types of evidence.

In February of this year, the New York Court of Appeals rejected the notion that discovery of Facebook and other social media postings should be assessed by a different standard than other types of documents. The Court in Forman v. Henkin, stated that the party’s designation of a post as “public” or “private” should not be considered. However, the entire contents of a Facebook account are not automatically discoverable in personal injury litigation. The standard is whether there is a basis to believe that Facebook postings would contain information “material and necessary to prosecution or defense of the action.” This is the same standard applied to other types of evidence, including many discoverable documents, such as correspondence and diaries that have historically been subject of permissible discovery.

The Court also noted that if a request was particularly problematic for the account holder, New York’s Civil Procedure Law and Rules already contains provisions to seek a protective order to limit discovery sought.

For potential litigants, the decision makes clear that social media accounts are not entitled to any special protection. Regardless of whether a party has attempted to keep posts private, a court may still order the information to be produced if it is relevant to the litigation.

If you are considering filing a lawsuit or are facing one, contact us for a consultation.

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