Updated: June 25, 2021
Your social media posts may have a bigger impact than you realize, especially if you have a case pending in court – even if your account is set to “Private”. In the case of Forman v. Henkin, in 2018, the highest Court in New York State established that normal discovery rules apply to social media, which means that new technologies should be treated no differently than other pieces of evidence. Thus, during any stage of a pending litigation, you should proceed with caution when using social media platforms as your opposing party might be able to display your private life in open court or, worse, use it against you.
To illustrate how this new ruling might affect a potential plaintiff, let’s assume the following scenario: a 57-year old man works for a construction company and his boss criticizes his work on a daily basis, making derogatory remarks about him and his age. Not only does the employer pay him less than his other coworkers, but the boss now decides to withhold the employee’s compensation due to a trivial mistake while on the job. A few weeks later, the man is ultimately terminated with a very offensive email.
The terminated employee might now want to pursue an employment discrimination suit related to the age discrimination against his former employer, where he would seek various damages, including emotional distress for the pain and suffering he experienced during and post-employment. After the plaintiff’s attorney has sent an initial demand letter and filed his lawsuit, the defendant finds out that plaintiff had posted pictures and statements on his private Facebook account that can contradict some claims and will certainly negate emotional distress damages. At that point, plaintiff temporarily disables his Facebook account to prevent defendant from taking screenshots and using them in court. He thinks that so long as his Facebook account remains inactive, the potentially damaging photos are safely out of sight. Right?
This is where the Court’s ruling in Forman comes into play. Under the new standard, if either party has materials on their social media accounts that are relevant to the issue in controversy in the litigation, the opposing party can make a request for production during discovery. In making its decision as to whether the social media materials would be admitted into evidence, the court wouldn’t look to whether the account is set on private or temporarily disabled because doing so would allow “the account holder to unilaterally obstruct disclosure merely by manipulating privacy settings or curating the materials on the public portion of the account.”
Rather, the defendant’s request for production of social media accounts has to be “appropriately tailored and reasonably calculated to yield relevant information.” The Court of Appeals also specified that there is no need to use portions of the plaintiff’s public account to contradict the injured party’s allegations and lay the foundations for any type of social media discovery. However, a general and unfounded demand for production of plaintiff’s accounts will most likely be rejected.
Interestingly, the Court didn’t make a ruling regarding the access of private messages. The issue was not raised by the defendant in Forman, but the Court’s opinion seemed inclined to permit such disclosure when private records are relevant. According to the Court in Forman, only limitations on disclosure remain privileged matter, attorney’s work product, trial preparation materials and any sensitive or embarrassing materials of marginal relevance – e.g., photographs showing nudity or romantic encounters.
In the previous example, what had the potential to be a slam-dunk case suddenly turned into a much more complex and uncertain scenario.
Whether your attorney just sent an initial demand letter or you’re preparing to testify at trial, you should be very careful with your social networks and should discuss these issues with an experienced attorney. It may only take one picture to weaken your credibility and make your claim fall apart.