Facebook Information:  Privacy v. DiscoveryWhen can a party to a lawsuit get access to another party’s Facebook-posted materials for discovery purposes without violating privacy rights?

On November 14, 2012, New York’s Appellate Division ruled on that question in an auto accident/personal injury matter involving two plaintiffs. See Richards v. Hertz Corp., No. 2011-02807 (N.Y. App. Div. Nov. 14, 2012.

During a July 2009 deposition of one of the plaintiffs, she testified that the injuries she sustained as a result of the accident impaired her ability to play sports, and caused her to suffer pain that was exacerbated in cold weather.

The defendants searched her public Facebook pages and discovered a photo of this plaintiff, dated January 2010, depicting her on skis in the snow.

The defendants then demanded access to all of the Facebook status reports, e-mails, photographs, and videos posted on both plaintiffs’ Facebook profiles since the date of the accident. The two plaintiffs objected.

The trial court ruled in the plaintiffs’ favor, but directed that they send the defendants copies of “every photo on Facebook” showing the plaintiffs “participating in a sporting activity.”

Defendants appealed, and the New York’s Appellate Division ruled partially in their favor.

The appellate court found that the defendants had demonstrated that the first plaintiff’s publicly available Facebook photograph was “probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook profile may contain further evidence relevant to that issue.”

Therefore, the defendants “made a showing that at least some of the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim.”

The trial court’s limitation to photos, however, was too narrow: “other items such as status reports, e-mails, and videos that are relevant to the extent of her alleged injuries.”

The breadth of its discovery ruling left the Appellate Division concerned “due to the likely presence in McCarthy’s Facebook profile of material of a private nature that is not relevant to this action.”

The appellate court did not order all of the materials to be turned over to the defendants, but instead instructed the trial court to conduct an in camera review to determine which materials “if any, are relevant to her alleged injuries.”

With respect to the second plaintiff, the Appellate Division found that the defendants failed to show that information they sought either: a) would result in disclosure of relevant evidence or, b) was reasonably calculated to lead to the discovery of information bearing on the claim.

As a result, the defendants’ demand for the second plaintiff’s Facebook information was denied.

Sue Ross (susan.ross@nortonrosefulbright.com / +1 212 318 3280) is a lawyer in Norton Rose Fulbright’s US intellectual property practice.