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“Court Says Private Facebook Content is Open for Discovery in Personal Injury Case” by William J. Niehoff and Allyson T. Schwab

Earlier this month, the New York Court of Appeals – the highest court in New York – came down with an interesting decision that could have significant effects on personal injury cases. Not only will this affect decisions in New York, but courts across the country.

This opinion comes out of Forman v. Henkin. In this case, Plaintiff claimed to have suffered severe injuries from falling off a horse caused by Defendant’s negligence in fitting the saddle. In a deposition, Plaintiff provided pictures from her personal Facebook account to evidence her once active lifestyle prior to the fall. Based on this testimony, defense counsel requested open and full access to Plaintiff’s “private” Facebook account. They believed that it could potentially contain more relevant material not produced at the deposition – such as additional privatized Facebook pictures and messages – that could help disprove the extent of Plaintiff’s claimed injuries. Plaintiff refused, and in response, Defendant filed a motion to compel. The trial court granted Defendant’s motion and ordered Plaintiff to produce the pre-accident photos (intended to be used at trial), post-accident photos (not displaying nudity or romantic encounters) and access to post-accident records of her Facebook messages. On appeal by Plaintiff, the Intermediate Appellate Court limited the scope of information Plaintiff was required to produce to only photos she intended use at trial. The case then found its way to the New York Court of Appeals.

The Court of Appeals reinstated the trial court’s decision and determined that Defendant’s request “was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive.” The court agreed that “some materials on a Facebook account may fairly be characterized as private, but even private materials may be subject to discovery if they are relevant.” She compared this type of material to medical records stating, “[m]edical records enjoy protection in many contexts under the physician-patient privilege. . .[b]ut when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records—including the physician-patient privilege—are waived.”

Per this ruling, Plaintiff will be obligated to produce the pre-accident photos, post-accident photos (not displaying nudity or romantic encounters) and grant Defendant access to post-accident records of her Facebook messages as was originally required by the trial court.

Note that this decision does not extend the rules of discovery to allow unlimited access to an opposing-party’s social media content in every personal injury case. Instead, it simply groups social media content – private or not – into the pool of potentially relevant material that is open to discovery. As with all other information, discovery requests for access to a party’s private social media material must be “appropriately tailored and reasonably calculated to yield relevant information.”

Decisions of this kind show unexpected ways that social media can be used in litigation and why privacy decisions about what to post online are extremely important.

Questions? Contact William J. Niehoff or Allyson T. Schwab at 618-234-9800.

William J. (Bill) Niehoff is a shareholder at Mathis, Marifian & Richter (MMR), who focuses his practice in commercial and civil litigation, personal injury litigation, business and commercial law, construction law, energy and regulatory law and employment and administrative law.

Allyson T. (Ally) Schwab is an associate attorney at Mathis, Marifian & Richter, Ltd. focusing her practice in litigation. She obtained her J.D. from University of Illinois College of Law. Ally also attended University of Illinois for her undergraduate studies, obtaining a B.S. in accountancy from the school of business in May of 2013.

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