Private Facebook pictures admissible as evidence — NY Court of Appeals  2/15/2018 1:51:00 AM 

A Manhattan woman must turn over her Facebook photos marked private to be used as evidence in litigation. The New York Court of Appeals voted 7-0 to reinstate a judge’s ruling.

NY Chief Judge Janet DiFiore deemed it appropriate to disclose materials that contained “material and necessary” evidence.

The court’s ruling based its decision on DiFiore’s assessment that it was “significantly controversial” as to whether or not Facebook’s privacy regulations protected the pictures.

Yesterday the NYS Court of Appeals ruled that limiting access only to a person’s public posts on Facebook is counter to NY’s "history of liberal discovery." If you file a lawsuit, you can now be required to hand over your private photographs & posts during the discovery process.

— Raphaelson & Levine (@raphaelsonlawNY) February 14, 2018

In 2011, plaintiff Kelly Forman accused defendant Mark Henkin of negligence for improperly fitting stirrups. The plaintiff suffered spinal and brain injuries after falling from her horse, and following the accident she became isolated and reclusive due to her injuries.

After the case was opened, Henkin demanded access to Forman’s entire Facebook account in order to defend himself during trial.

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Facebook CEO Mark Zuckerberg © Stephen Lam

In 2014, a trial judge ordered Forman to turn over all of her photos before and after the accident to Henkin, as well as her private messages so that he could assess them.

However, in 2015 a state appeals court demanded she submit only a smaller amount of photos suitable to continue the trial, due to Forman’s limited mobility and depression.

The ruling highlighted Forman’s right to internet privacy. “If a plaintiff’s claims are for emotional or psychological injury, it may be more difficult to frame a discovery demand, but it can certainly be done without resorting to a blanket demand for everything posted to the account,” it stated.

One of the defendant’s lawyers Michael Bono later challenged this, pointing out Henkin’s reasons for demanding Forman’s private data. “I think like in this circumstance where there’s a traumatic brain injury where part of the allegations go towards the inability to use Facebook, for example, it should be discoverable,” as quoted in a February 2 oral argument.

This is EXACTLY why you should not put ANYTHING on Facebook or social media generally that can come back to haunt you. NY top court says 'private' Facebook photos can be disclosed

— McCall (@BaughLaw) February 14, 2018

DiFiore expressed that “[some] materials on a Facebook account may fairly be characterized as private, [but] even private materials may be subject to discovery if they are relevant,” as quoted by Reuters.

Neither Forman nor Henkin’s lawyer has offered any immediate comments on the ruling.

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