Do you post things “privately” to Facebook, which you wouldn’t ordinarily post to a public forum that anyone could access (as opposed to being limited to your Facebook friends or circles)? A few weeks ago, I wrote about the consequences of deleting something from the internet, questioning the extent to which those things are really “gone.” Very similarly, if you post images or comments on Facebook, you run the risk of that content becoming a matter of public record, even if your posts are intended only towards a finite or limited group of individuals.
Case in point, New York’s highest court recently ruled, regarding so-called private Facebook posts, “even private materials may be subject to discovery if they are relevant.” (The phrase “subject to discovery” simply means that the opposing party has a right to see the material at issue.) The court’s reasoning for this decision is “[W]hen a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records – including the physician-patient privilege – are waived.” The court’s full opinion can be found here (PDF).This just states the well-established principle that when a person files a lawsuit claiming injuries (physical, mental, etc.) the party they’ve sued has a right to review their medical records, regardless of HIPAA, or any laws or regulations that protect patient medical records. But are medical records the same as a person’s personal and/or private documentation of events, which they legitimately believed would only be seen by certain people?
Although I disagree that Facebook content is equal to, and should be treated the same as a person’s medical records, as a trial attorney I recognize that in some limited situations private Facebook content could provide a smoking gun as to some material issue being litigated. As the New York Court of Appeals recognized, there are rules and procedural roadblocks that help protect and limit the scope of disclosure, and prevent the distribution of private content beyond the parties to the case (and sometimes even limiting disclosure to their attorneys only). But those rules are only as good as the attorney who negotiates the terms of disclosure, and then carefully drafts a confidentiality or protective order to prevent his client’s sensitive content from being used for other purposes, or worse yet, going viral on YouTube.
It is therefore critically important that all attorneys use and be proficient in at least the more common social media channels, so they have a working understanding of the privacy controls, security/login procedures, and manners of sharing or re-posting content. Imagine you have to write a list of detailed instructions for someone to fly a kite for the first time. Then imagine doing it if you’ve never before flown a kite.
So there are two lessons learned here: 1) Be careful what you post to Facebook, and other social media that allows material to be “private,” because it may not be as private as you think; and 2) Before hiring a lawyer, make sure he/she knows how to fly a kite.