A recent decision by the Appellate Division, First Department, once again makes it clear that your Facebook Pictures are Fair Game and discoverable for Defense Attorneys, but only to the extent that they are “relevant” to the injuries you are alleging.
Spearin v. Linmar, L.P., 155561/12 (App. Div., 1st, decided June 16, 2015), is a case involving an individual who claimed that as a result of getting hit on the head by a piece of falling wood in July of 2012, he was no longer able to play the piano. The plaintiff even testified to this during his deposition. However, defense counsel then did a search on the public profiles of Facebook, which anyone can do, and found several photographs of the plaintiff sitting in front of a piano after the accident, which tends to contradict what he testified to. Based on this evidence, defense counsel sought access to all of plaintiff’s Facebook page, not just the public portions open to the public. Judge Cynthia S. Kern ordered that plaintiff provide an authorization for the entire Facebook page, including the private portions. Plaintiff’s counsel appealed to the Appellate Division, First Department from Judge Kern’s Order.
After oral argument before Mazzarelli, J.P., Sweeny, Andrias, Saxe, Richter, JJ., the Court issued a decision reversing Judge Kern’s Order. If that were the decision by the Court, this article would be written positively towards a plaintiff’s right to privacy on his or her Facebook page. Unfortunately, this was not the end. After reversing Judge Kern’s Order, the Court sent the case back to Judge Kern for “an in camera review of plaintiff’s post-accident Facebook postings for identification of information relevant to his alleged injuries”.
In other words, the Court required that ALL OF THE PLAINTIFF’S PRIVATE Facebook postings MUST be turned over the the court so they can go through them to see if there are any postings relevant to the personal injury suit. A scary idea to anyone thinking about the implications if you have a law suit currently pending.
So what can you take away from this? MAKE CERTAIN YOU HAVE YOUR PRIVACY SETTINGS SET APPROPRIATELY. Remember that anyone can see posts and pictures that you do not make private. It seems that had the plaintiff kept his page, posts and pictures as private and only viewable to his friends, defense counsel never could have found the picture of the plaintiff sitting in front of a piano in the first place. And without the picture that contradicted his testimony, defense counsel had no evidence to take to Judge Kerns to ask for an Order in the first place.
Did your attorney bring this up as an issue when you first sat down to have a discussion with them about your case?