By Peter J. Gregory

In a unanimous decision, New York’s highest court, the Court of Appeals, recently ruled that Facebook users might be required to turn over photos and other information that is relevant to pending lawsuits, even if their social media content is shielded by privacy settings.

The injured plaintiff in Forman v. Henkin claimed that she fell off a horse fitted with a defective stirrup by the defendant. The suit says that the incident led to a spinal injury and brain damage, and she is now a recluse who has difficulty using a computer and “composing coherent messages.” 

Noting “significant controversy” over what information on Facebook deserves privacy protection, the court decision said it is appropriate to require disclosure of materials that are “reasonably calculated” to contain “material and necessary” evidence.  The court rejected the position that Facebook’s “so-called ‘privacy’ setting” governs the scope of materials to be disclosed in personal injury lawsuits.  However, the decision also states that the judges agree with other courts’ findings that someone’s entire Facebook account is not automatically discoverable in such litigation: “In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account.”   

In other words, although parties cannot go on a “fishing expedition” for social media evidence, narrowly tailored requests that are reasonably calculated to yield evidence relevant to the claims of a lawsuit might be permitted, regardless of privacy settings. 

As the landscape of electronic evidence evolves, we continue to encourage our clients to be mindful of the material that they publish online, including posts on social media networks.  For assistance with these matters, please contact a member of our personal injury practice

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.

About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New YorkState and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.