There are approximately 500 million active users of the social networking site Facebook, or one out of every 14 people on Earth. People post incredible details about their lives on Facebook and other social networking sites, from birth announcements, to what they had for lunch, to their daily activities, to whether or not they want to get a divorce. Facebook is the diary of the 21st century. These postings can be a veritable goldmine for defending corporations against lawsuits. However, until recently, the courts had not addressed whether or not a person's "private postings" on a social networking site were discoverable in litigation.
In the recent case of Romano v. Steelcase, Inc. 2010 WL 3703242 (N.Y.Sup. Sept. 21, 2010), the New York Supreme Court for Suffolk County held that a plaintiff in a personal injury action had to provide the defendant access to private postings from Facebook and from MySpace that could contradict the plaintiff's claims in her personal injury lawsuit. The court held that precluding Steelcase Inc. from accessing Kathleen Romano's private postings on Facebook "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 went on to say "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."
This case involved Ms. Romano's claim for injuries from falling off an allegedly defective desk chair manufactured by Steelcase while working at Stony Brook University. She claimed "serious permanent personal injuries," and that she had to undergo multiple surgeries, and was suffering from "pain and progressive deterioration with consequential loss of enjoyment of life." However, the public portions of Ms. Romano's Facebook account showed her "smiling happily in a photograph outside the confines of her home despite her claim that she ...is largely confined to her house and bed." Steelcase sought discovery of the private portions of Ms. Romano's Facebook to see if there was further evidence contained within regarding her condition.
The court held that by placing her physical condition in controversy, Ms. Romano was unable to hide discoverable material. The judge held, "Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action. ...Accordingly in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury." The court went on to say that Facebook warns users that they post content on the site at their "own risk" and that "no security measures are perfect or impenetrable", and so "when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites or they would cease to exist."
There is a potential wealth of information available to litigants on Facebook, MySpace, or other social networking sites, particularly in defense of personal injury or wrongful termination claims, or wherever a plaintiff has put his or her condition in controversy. People will continue to post personal information on these sites, and will treat these sites as their own electronic diaries.
If you are concerned about the possibility of litigation, we can assist you in navigating the changing world of social media. If you have any questions about this article, contact:
James J. Boutrous II
E. Jason Blankenship
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