Social Network Sites and Discovery

The New York Law Journal article by Noeleen G. Walder, Judge Grants Discovery of Postings on Social Media, reports that Suffolk County Supreme Court Acting Supreme Court Justice Jeffrey Arlen Spinner has granted a defendant's motion for an Order to access the plaintiff's current and historical Facebook and MySpace pages and accounts. Granting the Order in Romano v Steelcase Inc., Justice Spinner held that precluding defendant Steelcase Inc. from accessing plaintiff Romano's private postings on Facebook and MySpace "not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff's attempt to hide relevant information behind self-regulated privacy settings."

The judge continued: "In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action." Saying that social networking sites are not private places for storing intimate secrets but rather fact public spaces, he said: “Indeed, as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy. In this regard, MySpace warns users not to forget that their profiles and MySpace forums are public spaces, and Facebook's privacy policy set forth, inter alia, that: ‘You post User Content . . . on the Site at your own risk. Although we allow you to set privacy options that limit access to your pages, please be aware that no security measures are perfect or impenetrable.’ “

Plaintiff sued for damages for personal injuries sustained after she fell off an allegedly defective desk chair while working at Stony Brook University naming the manufacturer of the chair as one of the defendants. Steelcase, the manufacture claimed it had reason to believe that the Plaintiff posted pictures and information that showed she was not suffering from a loss of enjoyment of life. Not only did the Defendant want to access the private portions of the Plaintiff's account, but they also wanted access to any deleted information. The lesson in this ruling is simple: expect all content posted on Facebook or MySpace to be considered public information by the courts, and do not expect that self-imposed privacy settings provide protection in a court proceeding.

A post on 3 Geeks and a Law Blog tells of Ethics Opinion 843 by the New York State Bar Association on the question of accessing Facebook and MySpace Information for use in trial, The Committee concluded:

A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not "friend" the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).