Private Section of Plaintiff’s Facebook Page Is Discoverable in Litigation



Don’t be fooled by the “privacy” setting of your Facebook account! Pictures you post there are not immune to discovery (exchange of information by the parties to a lawsuit).

In a lawsuit, plaintiff alleged the following: she was injured when she fell off a horse owned by defendant. Sadly, she suffered spinal and traumatic brain injuries that caused cognitive deficits including memory loss and difficulties writing and speaking, all leading to social isolation. Plaintiff sued for damages including medical bills, pain and suffering, and loss of enjoyment of life.

At a deposition plaintiff stated she had maintained a Facebook account to which she posted “a lot” of photos during her pre-accident active life. She deactivated the account six months after the accident and cannot recall whether any post-accident pictures were posted.

Defendant sought unlimited authorization to obtain all the pictures on plaintiff’s private Facebook account, arguing they would be material and necessary to his defense. Plaintiff refused to give access and so defendant sought consent from the court. Specifically, defendant referenced plaintiff’s claims that she engaged in certain activities prior to the accident but was unable to do so after, including cooking, traveling, engaging in sports, horseback riding, attending movies or the theater, or boating. Defendant claimed that pictures on plaintiff’s Facebook page likely would contain evidence concerning plaintiff’s allegations.

Indeed, not infrequently defendants’ lawyers find pictures on plaintiffs’ social media postings that show plaintiffs engaged in activities that would be impossible based on injuries plaintiffs claim in the lawsuit.

Plaintiff in the horse case argued that the pictures in the private setting of her account were intended to be private and so should not be subject to discovery. The court rejected this argument and decided in favor of defendant, noting that even private materials may be subject to discovery if they are relevant. For example, medical records are considered a private matter between a doctor and patient and protected from disclosure in many contexts such as the physician-patient privilege. This legal rule bars a doctor from disclosing medical information about a client to third parties and in court. However, when a plaintiff sues and places her mental or physical condition in issue, that privacy mandate is considered by law to have been waived.

So plaintiff was ordered to provide the horse owner the following: all pictures of plaintiff that she intends to introduce at trial, and all pictures of herself privately posted on Facebook after the accident. Note however, the court exempted any photos that depict nudity or romantic encounters, these are not subject to discovery.

For more information, see Forman v. Henkin, 2018 WL 828101 ( NY Crt of Appls, 2/13/2018)


Why did the court override Facebook’s privacy setting?