New York’s highest court has recently ruled that much of the information posted to private social media accounts is viewable by defendants and their legal teams. While the court emphasized that available information often needs to be decided on a case by case basis, the decision made in regards to social media accounts in Forman v. Henkin made clear that defendants will seek to use injured parties social media accounts against them.
In Forman v. Henkin, the plaintiff, Kelly Forman, fell from a horse that was owned by the defendant, Mark Henkin. As a result of the accident, the plaintiff received severe spinal and brain injuries. These injuries resulted in a loss of memory, cognitive functioning, and increased difficulty in verbal and written communication. The plaintiff testified that just writing an email could take multiple hours, as she had to read over the document numerous times in order to ensure there were no grammatical errors. In response to this information, the defendant drafted a motion that sought permission to view all contents of the plaintiff’s private Facebook account. The defense team contended that viewing the written and pictorial information posted to the plaintiff’s Facebook account, as well as information in regards to how much time she spent on Facebook, was essential to the case.
The plaintiff objected, arguing that the “public” portion of her Facebook account did not contradict her claims or sworn testimony.
The case eventually made its way to New York’s highest court, the Court of Appeals.The Court reaffirmed the original ruling, which stated that the defendants were entitled to all photographs posted on Facebook prior to the accident which the plaintiff intended to use at trial, all photographs posted after the accident, and an authorization for Facebook records showing each time plaintiff posted a private message on Facebook after the accident including the number of words or characters in the message.
In general, the court ruled that the courts should consider the nature of the events giving rise to the litigation to determine whether relevant material is likely to be found on a social media account. In personal injury actions where an injured party claims their ability to participate or enjoy social activities, exercise, hobbies, travel or work has been compromised, the defendant is sure to inquire about postings and pictures on social media accounts such as Facebook, Instagram, LinkedIn, etc. to discover if there is information to impeach those claims.
In every case going forward, an injured party making a claim can expect that the defendants will make inquiries about all of the plaintiff’s social media accounts to see if they may contain information that can be used against them.
If you have a question in regards to injuries sustained from an accident, as well as how to go about handling the accident on social media, you should contact an experienced New York Personal Injury Law Firm, such as the law firm of Zalman Schnurman & Miner P.C. Our law firm handles all cases in the New York metro area, and has provided over 25 years of dedicated service to our clients. For a free consultation call 1-800-LAWLINE (1-800-529-5463).