Late last month, N.Y. trial judge, Jeffrey Arlen Spinner, ruled that a plaintiff in a personal injury lawsuit must disclose information she posted to her Facebook and MySpace accounts. In 2003, plaintiff alleged that she fell from a defective desk chair while working at Stony Brook University. She sued the manufacturer and distributor of the chair, claiming that her fall caused “serious permanent personal injuries” as well as “pain and progressive deterioration with consequential loss of enjoyment of life.”
In discovery, the defendants requested that plaintiff provide them with “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.” The plaintiff refused to provide the authorizations, arguing that she had a reasonable expectation of privacy in her home computer, that the defendants’ discovery requests were “speculation and conjecture” and “harassment.” Facebook joined with the plaintiff in opposing the discovery request, also arguing that the discovery request violated the federal Stored Communications Act. MySpace did not take a position in the matter.
Disagreeing with both the plaintiff and Facebook, Judge Spinner ruled that if plaintiff’s records were not produced, it “…would go against the liberal discovery policies of New York favoring pretrial disclosure…[and]…would condone Plaintiff’s attempts to hide relevant information behind self-regulated privacy settings.” (Emphasis added.) The judge wrote that plaintiff’s accounts contained both public and private material, and “…the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony…” Thus, he wrote, “there is a reasonable likelihood that the private portions of her site may contain further evidence such as information with regard to her activities and enjoyment of life…” (Emphasis added.)
“Plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action,” the judge concluded. (Emphasis added.)
What Can Be Learned From Judge Spinner’s Conclusion?
Involuntary disclosure of one’s personal information, regardless of where it is stored or what it is, often creates visceral reactions on both sides of a public dispute because disclosure implicates either an actual or perceived right of privacy. Nevertheless, as Eric Goldman observed at his blog (link below), Judge Spinner’s conclusion “tells us what we already knew.” Some thoughts to consider:
- The law favors disclosure so that a controversy can arrive at the truth. Most states now have liberal discovery rules, which not only permit the discovery of information “necessary” to the defense of an action, but permit attorneys to go on “fishing expeditions” to uncover information “reasonably likely to lead to the discovery of admissible evidence.” (See, e.g., Cal. Civil Proc. Code, 2017.010; Greyhound Corporation v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266 (1961).) If anything, Judge Spinner’s use of the word “necessary” was overly limiting on the broad scope of pretrial discovery under state law, not unduly burdensome or harassing as the plaintiff claimed.
- Before discovery commences, vigorously examine your client about their online activities. Many, if not most, states impose on counsel a duty to conduct an investigation prior to responding to discovery requests. At the earliest possible point in your fact-gathering from your client, you should be questioning your client thoroughly about their online activities. Insist that they provide you with full access to their accounts so that you are not later caught by surprise. Make sure you have frank discussions with your client about any information they may have “scrubbed” (i.e., deleted) from social sites, as that information may be archived for a period of time and discoverable.
- If you do not have office procedures that facilitate such an examination, create them. Make certain that anyone involved in fact-gathering for you (e.g., paralegals, investigators) understand the importance of this examination and following these procedures. Update your procedures regularly and often because this is an area where cyberspace is in constant flux.
- Learn what social networking/social media is and what sites exist. If you would like a list of social networking sites, Wikipedia has a list, but remember that the list may not be current. Another good way to learn at least about the identity of some commonly-used social networking sites is by reviewing “sharing services” like AddThis, Shareaholic, ShareThis, and others. In fact, these services may help you create your own list of social networking sites to ask your clients about, which can be easily incorporated into your fact-gathering procedures.
- If you do not understand the parameters of privacy and how it relates to your client’s social activities – online or otherwise – educate yourself. Regardless of whether your client’s activities occur in the real or virtual world, they may be discoverable. Regarding online activities, both MySpace and Facebook’s privacy policies expressly caution their users that their information may become public despite the service’s privacy measures. These cautions strongly undercut both the plaintiff’s and Facebook’s arguments in this case. As legal commentator, Richard Raysman, said, “The defense is entitled to obtain a plaintiff’s private information regardless of whether it is in a photo album at home or in cyberspace.” While this writer does not entirely agree with Raysman’s statement, his point of significance is that the forum where an individual collects information is less consequential in a discovery dispute than the substance of the information itself. By arguing that plaintiff’s online activities were, in effect, her “living room or bedroom electronically,” plaintiff’s counsel failed to appreciate this distinction. Assume for the moment that the plaintiff’s claim included a loss of consortium claim. If so, then the defense would be entitled to pre-trial discovery on incredibly personal and intimate details of an injured plaintiff’s life. Why, then, are a plaintiff’s online activities beyond the reach of discovery?
The nitty-gritty is this: We all enjoy a right of privacy, and there are confines on the scope of discovery of one’s online activities that are beyond the scope of this article and which may differ from state to state or whether one is discussing state versus federal law. (See, e.g., Crispin v. Audigier (C.D. Cal. May 26, 2010), available here. Nevertheless, as a general principle, we must get beyond this legally tenuous notion that posting photographs or other information on a third-party website in cyberspace is, somehow, more private than real-time activities or communications over which there would be little debate as to their discoverability. Judge Spinner’s ruling demonstrates the danger to you and your clients in thinking that online activities are private.
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- “Romano v. Steelcase: Defendant Granted Discovery of Plaintiff’s Facebook Profile” and related posts (delawareemploymentlawblog.com)