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'Private' Facebook photos are fair game in lawsuits, NY's top court rules

State Supreme Court unanimously rules that limiting access to public posts runs counter to New York's rules of discovery.

New York's Supreme Court has ruled that

New York's Supreme Court has ruled that "private" Facebook photos are discoverable at trial. Photo Credit: Getty Images / Dan Kitwood

ALBANY — New York’s top court ruled Tuesday that portions of a person’s private Facebook profile can be accessed by opponents in a lawsuit.

In a case that involved a horse, a fall and a Long Island park, the Court of Appeals said social media material is akin to, say, information kept in a file cabinet and should be relevant to litigants if relevant.

Limiting access only to a person’s public posts on Facebook runs counter to New York’s historically liberal rules of discovery in a trial, the court said in a 7-0 opinion.

Writing for the court, Chief Judge Janet DiFiore likened Facebook information to records in a medical lawsuit. A patient might consider some of her files private, but if she commences a lawsuit, she might have to turn over all the private files that pertain to the case.

The decision Tuesday involved a serious spill at Southaven County Park in 2011. Kelly Forman, reportedly a Manhattan interior decorator, sued the horse’s owner, Mark Hankin after she fell while riding.

According to court documents, Forman claims the strap attaching the stirrup to the saddle broke, causing her fall. She claims she suffered traumatic brain damage that caused cognitive deficits, memory loss, difficulty in communicating and social isolation.

Hankin’s attorneys asked for access to Forman’s Facebook account, arguing the records were necessary to evaluate her injuries and credibility.

A trial court granted Hankin access to some nonpublic portions of Forman’s Facebook account, including photographs she posted before and after the accident. The midlevel Appellate Division said that went too far and that Forman only had to share photos and messages she planned to use at trial.

But the Court of Appeals overturned that decision. The court said that it’s not up to Forman to determine what Facebook information is germane.

Leaving it up to Forman 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,” DiFiore wrote. She added: “Even private materials may be subject to discovery if they are relevant.”

The case now returns to a trial court where Hankin can pursue the Facebook information.

Attorneys for Forman and Hankin didn’t immediately comment.

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