What's on Your Client's Facebook Page?: Rise in Social Media Has Discovery Implications
Increasingly, defense lawyers seeking information about plaintiffs are looking at information on social networking sites such as Facebook and MySpace as part of their investigation. Sometimes, these lawyers are able to obtain information about plaintiffs through information which is available for public viewing. However, a plaintiff adjusting her privacy settings to prevent public access may not be enough.
In a number of cases, defendants have sought, and the courts have permitted, discovery of information on social networking sites. Most recently, in Romano v. Steelcase Inc., et al., a New York state trial court granted defendant access to plaintiff’s current and historical Facebook and MySpace pages (including deleted pages).
In Romano, plaintiff filed suit against the manufacturer and distributor of her office chair after she allegedly fell of the chair. Plaintiff alleged she sustained “permanent injuries” from the fall and, as a result, was generally confined to her home. Through discovery, defendants sought information and pictures from plaintiff’s Facebook and MySpace accounts. Defendants alleged that plaintiff has posted pictures of herself “smiling happily… outside the confines of her home,” which was contrary to her claim that she was confined to her home.
The court ordered disclosure of the information finding that plaintiff’s privacy concerns were outweighed by defendant’s need for the information. Citing a strong public policy in favor of disclosure in pre-trial discovery, the court held that “[p]laintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action.” The court also rejected plaintiff’s argument that the information was protected by her right to privacy. The court reasoned that, when creating Facebook and MySpace accounts, plaintiff knew that her information would be available to the public and, thus, she had no reasonable expectation of privacy.
The court’s ruling in Romano is consistent with a handful of other cases which have addressed this issue. In Ledbetter v. Wal-Mart Stores, Inc. (D. Colo. 2009), Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. 2007) and Beye v. Horizon Blue Cross Blue Shield (D. N.J. 2006), the courts held that information posted on social networking sites is, at least in part, discoverable.
The lesson for attorneys may be to know what is on your client’s Facebook or MySpace pages in cases where this content may become relevant. Additionally, in such cases, it may be important to advise your client such information may be discoverable and therefore she should exercise discretion in what she posts to social media sites – or not post at all.
