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Social Media: “Friend” or Foe?

Social Media: “Friend” or Foe? by James F. Leonick

There was a recent ruling by the highest court in New York State, the Court of Appeals, regarding the impact of social media and the ability of parties in a lawsuit to obtain access to the social media accounts and content of the other parties involved. The case that was decided was Forman v. Henkin. The opinion was written by New York’s Chief Judge, Janet DiFiore.

That case involved a personal injury plaintiff who was injured as a result of a fall from a horse. She claimed spinal injuries, as well as traumatic brain injuries that resulted in cognitive deficits. During the course of the litigation, she testified that she had a Facebook account and that her Facebook account had a lot of photographs on it prior to the accident, many of which demonstrated her formerly active lifestyle. As a result of her testimony, the defendant in the lawsuit requested an unlimited authorization to access her entire Facebook account, including any private material contained on that account. When her attorney objected, it resulted in the issue being presented to the assigned judge.

That judge put certain limitations on what had to be disclosed. An appeal to the Appellate Division followed. The appellate court changed the scope of the trial court’s ruling to some extent. Since social media has become a hotly contested topic in discovery (exchange of information) in lawsuits. This issue affects various types of lawsuits, including personal injury, sexual harassment, and discrimination cases. The Court of Appeals decided it was time to review this area of law and use this case to set precedent for discovery in other lawsuits.

A critical factor in the Court of Appeals’ ruling compared the waiver of the privacy concerning medical records with waiving privacy to social media accounts. Since a personal injury plaintiff puts their medical condition at issue, they waive certain rights. Normally your medical information would be inaccessible, however, if you bring an injury action for personal injury, the other parties are entitled to review your medical information. Otherwise, you can’t prove your case and they can’t investigate it.

The Court used this rationale to approach the issue of accounts on all forms of social media. Other situations could involve any other type of social media whether it be Twitter, Snapchat, Instagram, LinkedIn, etc.

Specifically, the Court said that privacy settings don’t necessarily limit the scope of what another party should be able to access. The test for how far another party should be able to delve into a social media account relates to what is “…material and necessary to investigating or discovering information about your case.”

That means, depending upon the issues in any particular case, a defendant may craft an argument as to why they should be entitled to access a personal injury client’s private social media records.

It remains to be seen how this will be applied in future cases. As a plaintiff’s attorney, I fully expect defendants’ attorneys to ask for access to every plaintiff’s social media account to look for damaging information in an to attempt to go on a “fishing expedition.”

I will object in every instance to this invasion of privacy.

Defense teams are excellent at digging through information for “gotcha” type sound-bites that present the defense perspective in the most favorable light to the defendant. I suspect that there is going to be a lot of debate over the subtleties and implications of this precedent handed down by the Court of Appeals.

The takeaway is that now, more than ever, litigants’ personal lives may come under even greater scrutiny in lawsuits. Posting information about your incident, your accident, your injuries, or your ability to work is not wise. It is far better to shield that information from the glare of social media. For more information, contact me here.

James F. Leonick
Leonick Law, P.L.L.C.
TEL: (631) 486-9500
Email: info@LeonickLaw.com

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