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Barton LLP
New York, New York

If you’ve ever shared anything personal on a social media platform—photos, status updates, political views—chances are you’ve heard the (digital) age-old adage: “The Internet is forever.” With the right tools, even content that is marked as private or deleted entirely can be dredged up from the depths of the World Wide Web. Consequently, this virtual permanence renders social media platforms as powerful discovery tools during the course of litigation.

New York has traditionally upheld a liberal standard of discovery, codified in Section 3101 of the New York Civil Practice Laws and Rules (N.Y. CPLR §3101[a]) which states that “There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” Adhering to this principle, NY courts have generally deemed parties’ public social media accounts admissible as long as they are obtained legally.

But what about private social media information, such as direct messages, locked accounts, or photos only viewable to a designated group of friends? Is this information the protected private property of the individual?

For the most part, the courts say no. New York’s liberal discovery rule has traditionally overridden the privacy privileges of social media users whose posted content may lend valuable insight into their cases. In the same way that a personal diary containing salient information is admissible in court, so too is information pulled from a plaintiff’s social media accounts, regardless of whether that content is self-categorized as “public” or “private.”

In February 2018, the New York Court of Appeals in Forman v. Henkin held that private online content is discoverable if it can reasonably be assumed to contain information relevant to the case. The court also provided the following three guidelines for determining the scope of disclosure:

  1. Consider the nature of the event causing the litigation and the damages claimed to assess whether relevant material is likely to be found on the [social media] account.
  2. Balance the potential utility of the information sought against any specific “privacy” or other concerns.
  3. Issue a tailored order identifying materials to be disclosed while avoiding disclosure of irrelevant material.

In late January of 2019, the Appellate Division, First Department in Vasquez-Santos v. Mathew, issued a similar decision. That case involved a semi-professional basketball player who claimed that a car accident ended his athletic career prematurely due to the injuries he sustained.

However, when Facebook photos of the plaintiff playing basketball surfaced after the accident, the court granted the defendant’s motion to compel access to the plaintiff’s devices, social media, and email accounts. Despite the fact that several of these accounts were kept under private settings, the court ruled that, “private social media information can be discoverable to the extent it ‘contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims.’”

Social media evidence has been deemed discoverable in cases involving fraud, trade secrets, and breach of contract, in the employment context.  For example, Matter of RevitaLife Therapy v. Petersel (July 2018) illustrated this very point. Alyssa Petersel was an employee of RevitaLife Therapy, a provider of psychotherapy services. Petersel had executed an Employment Agreement containing several restrictive covenants, among which was a non-solicitation agreement prohibiting Petersel from soliciting business from RevitaLife’s referral sources for two years following termination.

RevitaLife claimed that Petersel violated the terms of her Employment Agreement by poaching a number of the company’s referral sources after her employment had terminated. RevitaLife sought an injunction against Petersel, backing up their claim with a screen shot from Facebook. This screen shot showed Petersel using a Facebook therapist group page to actively communicate with and solicit RevitaLife’s referral therapists for her own company. In the face of the evidence, the court issued the injunction, agreeing that Petersel had used her social media account to breach her employment contract.

As social media has grown in popularity, courts in New York have made it abundantly clear that information posted on the internet is subject to discovery in litigation. It just goes to show that—in a court of law at least—nothing we put on social media is ever really private.