Legal landscape note: This article was originally published in 2016 and describes the law as it stood at that time. New Jersey law changes frequently.
The photos you post this weekend could surface later as evidence. In personal injury, divorce, and custody disputes, the other side can ask a court to order production of your Facebook photos, posts, and even private messages -- and once something is on the internet, it never goes away. A useful rule: if you would not want it published in the New York Times, do not post it.
Source: "Courts Still Torn Over Whether Facebook Posts Can Be Discoverable" -- January 19, 2016.
Facebook has been around for more than a decade, but courts are still grappling with how to treat discovery requests for photos and posts from the site.
According to Joshua Stein and J. Alexander Lawrence of Morrison Foerster, the New York State Appellate Division recently came down divided on a discovery request involving Facebook posts in Forman v. Henkin, a personal injury case. The plaintiff said she was injured in a horseback riding accident and her injuries limited her social activities.
At trial, the judge allowed the defendant to obtain all photographs of the plaintiff privately posted on Facebook prior to, and after, the accident (that don't show nudity or "romantic encounters"), as well as records from the social network with private message history. But on appeal, the scope of this discovery was limited and the discovery request was effectively gutted.
Applying the discovery principles of "materiality" and "necessity," the majority of the court held the defendant didn't establish the request would produce relevant information. In dissent, Justice David Saxe argued there is an extra procedural burden on the party making the discovery request and then on the courts, when it comes to unearthing private social media matters. He argued parties aren't normally expected to prove the existence of relevant material before requesting it.