Hold the Phone: Private Facebook Posts and Photos are Discoverable


New York’s Court of Appeals (New York State’s highest court) recently ruled that limiting discovery to public Facebook posts is contrary to New York’s liberal discovery. As a result of this ruling, plaintiffs may now be required to disclose relevant private Facebook photographs and posts as part of discovery.

In Forman v Henkin, a personal injury action, the Court of Appeals was asked to resolve a dispute concerning disclosure of materials from a plaintiff’s Facebook account. In her suit, plaintiff alleged that she injured herself when she fell from a horse owned by the defendant. Following the accident, plaintiff claimed she became isolated and reclusive due to her injuries. During her deposition, plaintiff testified about her use of Facebook, stating she had posted many photographs of her lifestyle prior to her accident and that she could not remember if she posted any post-accident photographs. As a result, defendant demanded access to plaintiff’s entire Facebook account because her photographs and posts were relevant to the scope of her injuries and credibility. When plaintiff failed to provide the discovery, defendant filed a motion to compel.

The trial court ordered plaintiff to turn over all of her Facebook photos before and after the accident, as well as her private messages so that defendant could defend himself in the lawsuit. Plaintiff appealed, and the Appellate Division modified the trial court’s order. Accordingly, the plaintiff was only required to submit a smaller number of photographs. That decision highlighted plaintiff’s right to internet privacy.

However, Chief Judge Janet DiFiore, writing on behalf of a unanimous Court of Appeals, compared Facebook postings and photographs to medical records, noting that although medical records enjoy the protection of physician-patient privilege, if a plaintiff commences a lawsuit, the plaintiff might have to turn over all the private files relevant to the case. The Court of Appeals also rejected the argument that Facebook’s “privacy” setting governs the scope of discoverable materials in personal injury lawsuits. That said, the opinion also specifically found that a plaintiff’s entire Facebook account is not automatically discoverable just because they filed a personal injury lawsuit. Indeed, “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.”