Hide and seek. It’s a cute game when kids play, but what about in the context of a contentious litigation? The cute game transforms into a cutthroat endeavor to seek any information to sabotage the opposition’s case. Given the prevalence of social media (even Grandma has a Facebook account nowadays), the first point of attack to collect necessary intelligence tends to be the opposition’s social media accounts. The instantaneous nature of social media provides a window into the opposition’s everyday life. They share where they are, what they are doing, and who they are with. Some social media users try to ensure the privacy of their information by taking advantage of certain privacy settings, which raises the question: is hiding certain information (by making the contents of a social media account private) enough to avoid disclosure during litigation?
The Court of Appeals recently answered this question in Forman v. Henkin, No. 1, 2018 WL 828101, at *4 (N.Y. Feb. 13, 2018), where the Court held that information contained in a Facebook account, whether public or private, must be disclosed so long as it is relevant to the claims at issue. Eager for the instant gratification we receive with each like or comment on a post, we sometimes lack the foresight to consider how the information we post on social media may ultimately be used to verify facts, or, even worse, to impeach credibility. Say a salesperson is accused of soliciting customers in violation of a non-compete agreement, or an employee claims entitlement to overtime wages, or, most commonly, an individual sustains personal injuries—you can be sure that the defendants are scrubbing the plaintiffs’ social media accounts for evidence disputing the credibility of the plaintiffs’ claims. Especially considering the recent decision in Forman, even if the plaintiffs try to hide such information by making their accounts private, the defendants will now be entitled to seek it.
In Forman, the plaintiff fell from a horse and alleged that she suffered severe spinal cord and brain injuries. The plaintiff claimed that her injuries resulted in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation. During her deposition, she testified that she had a Facebook account that she deactivated approximately six months after the accident and that before the accident she posted “lots” of photos of her “active” lifestyle.
Unsurprisingly, based on the plaintiff’s claims, the defendant requested an authorization to obtain the contents of her Facebook account. The plaintiff refused to provide an authorization, arguing that the defendant failed to establish a basis for access to the plaintiff’s private portion of her account because the public information contained on her profile included only one picture, and that picture did not contradict her claims. In opposition, the defendant contended that just because the public information viewable on plaintiff’s Facebook profile did not contradict her claims did not mean that the postings on the private portion of the account might contain something relevant to the defense.
Prior to Forman, parties avoided disclosing private information on social media accounts by relying on precedent that required the party seeking disclosure to identify relevant information contained in the social media account before seeking disclosure. However, the Court in Forman keenly noted that requiring a party to identify relevant information before seeking disclosure effectively permits the disclosing party to manipulate privacy settings to avoid disclosure. This is not to say that parties are now entitled to unfettered access to social media accounts simply by virtue of commencing a lawsuit. Disclosure still must be narrowly tailored to the claims at issue in the case. Nonetheless, the most important takeaway from this case is that parties can no longer hide behind the veil of privacy to avoid disclosing information that may be detrimental to their case.
We all get the urge to share information on social media, but once litigation commences, plaintiffs are well advised to consider the potential ramifications of each post and how it could be used against you. When all is said and done, litigation involves people, which means it necessarily entails emotions and the impulse to make your story heard. However, during litigation, social media is not the proper forum to share your personal thoughts, feelings, and photographs. Let your attorney advocate on your behalf to avoid having your case debilitated by contradictory posts on social media that impugn your claims and credibility. Remember—even if you try to hide them, your adversary will be permitted to seek them.