Social Media Privacy Settings May Not Protect Your Information From Discovery

Users of social media are likely familiar with privacy settings, and understand that setting their profiles to "private" ensures that people who are not friends, connections or followers cannot view their information and postings. However, it is equally likely that most social media users have not considered whether those privacy settings protect their information from production in litigation. The Court of Appeals of New York recently considered the issue.

Forman v. Henkin, 2018 N.Y. Slip. Op. 01015 (N.Y. Feb. 13, 2018), is a personal injury case in which the plaintiff fell off a horse owned by the defendant. The plaintiff alleges that she suffered spinal and brain injuries that caused cognitive deficits, memory loss, difficulties communicating and social isolation. It was the plaintiff's position that she had become reclusive because of her injuries and had trouble using a computer and composing coherent messages. During the plaintiff's deposition, she testified that prior to her injury she had an active Facebook account on which she posted "a lot" of photographs showing her active lifestyle, but that she had deactivated her account six months after the accident due to her desolation.

The defendant moved to compel (after the plaintiff refused to authorize the defendant) access to the plaintiff's entire "private" Facebook account. The defendant argued that her Facebook account was relevant to the plaintiff's allegations that she was active before the accident and posted photographs showing that activity. The defendant also argued that her account would be relevant to her claims that she could no longer engage in those activities and that the accident negatively affected her ability to read, write and use a computer. The plaintiff opposed the motion on the basis that the defendant was not entitled to her private account because the public portion contained only a single photograph that did not contradict the plaintiff's claims.

The Supreme Court of New York ordered the plaintiff to (1) produce all photographs of herself posted to Facebook prior to the accident that she intends to introduce at trial, (2) produce all photographs of herself posted to Facebook after the accident (with a limited exception regarding private romantic photographs) and (3) authorize Facebook to provide data showing each time the plaintiff posted a private message after the accident and the number of characters or words in the messages.

Despite the Supreme Court...