No, don’t put it on Facebook

I’m not sure what George Orwell would have made of Facebook. I like to think he’d have been amused by the idea that social media would have put the Thought Police out of work. Lawyers everywhere are discovering, however, that it can keep them in work.

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Ms Kelly Forman fell from a horse. She suffered spinal injuries and also acquired brain injury. She alleged that her brain injury caused cognitive problems which made it difficult for her to express herself. Among other things, she claimed that she had trouble using a computer and, in particular, spelling and remembering the rules of grammar so to express herself coherently. She sued the owner of the horse.

The defendant sought an order that the plaintiff provide access to her entire Facebook account on the basis that the photographs and written content were relevant to his defense, including showing the time it took the plaintiff to compose or respond to messages. The Supreme Court of New York County ordered the plaintiff to produce all photographs posted privately on Facebook prior to the accident which she intended to produce at trial, all photographs of herself posted privately after the accident, and records detailing each time she had posted a private message after the accident and the number of characters or words in the message.

The plaintiff appealed and the Appellate Division narrowed the order. The Defendant appealed to the New York Court of Appeals.

The Court of Appeals reinstated the original order. It rejected the idea that the scope of discosure of social media materials should be controlled by the accountholder’s privacy settings. The Courts should instead employ their well-established rules as to discovery, including as to preventing ‘fishing expeditions. When called upon to decide a dispute as to social media discovery –

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. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

As a generation rises whose entire life from conception onwards has been documented on Facebook, discovery disputes will be ever more important to personal injury lawyers.

Forman v Henkin (2018), New York Court of Appeals, 13 February 2018