‘Private’ No More On Social Networking Sites

November 18, 2010

Jeffrey Rosenthal

Law360

Social networking sites are everywhere. There are twice the number of active users of Facebook and MySpace (the two largest social networking sites) than there are people living in the U.S. Almost 10 percent of the entire world uses such sites. In fact, chances are pretty good that if someone has never asked you to “friend” them online — they soon will.

For most people, social networking sites represent an opportunity to connect on a personal (albeit digital) level, discuss shared interests and post photos and videos of various life experiences. But for legal practitioners — and especially personal injury and employment lawyers — Facebook and MySpace have an entirely different significance. Rather than a shining beacon of connectedness, these sites can spell doom for unsuspecting claimants.
 
Both sites permit users to set privacy levels to restrict with whom they share their information. Practitioners — citing an invasion of such privacy — have begun to exploit this fact to prevent probing discovery. But the validity of this contention is shaky at best, and is now being dismissed by courts.
 
The curtain has fallen: it is time to recognize that if you post it, it will be seen.
 
Put It Up, Give It Up: Social Networking and the Law
 
Social networking sites have forever altered how society interacts. The impact is now being felt in the legal arena. Lawyers on both sides are learning just how fertile such sites can be for the discovery process. Imagine, if you will, how utterly damaging pictures of a smiling, vacation-bound client would be to a claim for injuries that, allegedly, left her “largely confined to her house and bed.”
 
This is exactly what defense counsel in the recent case of Romano v. Steelcase Inc. sought when he requested Kathleen Romano’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages” under the auspices that said information was believed to be “inconsistent” with her claims and the “extent and nature of her injuries” — especially her claim for loss of enjoyment of life.
 
Decided by the New York Supreme Court on Sept. 21, 2010, Romano represents the latest in a series of decisions aimed at exposing the weaknesses in attempts by claimants to shield the more intimate details of their profiles by utilizing so-called privacy settings.
 
In Romano, the plaintiff claimed she sustained permanent injuries after she fell off a defective chair and could no longer participate in certain activities, which affected her enjoyment of life. A review of the public portions of her MySpace and Facebook pages, however, told a very different story.
 
According to defense counsel, such pages revealed Romano had an active lifestyle and had, in fact, traveled to Florida and Pennsylvania during the time she claimed her injuries prohibited such activities. As a result, counsel sought to question Kathleen at her deposition about such accounts — but to no avail. She similarly refused to provide access to her accounts following a notice for discovery and inspection.
 
The court deemed the information on Kathleen’s MySpace and Facebook accounts “both material and necessary to the defense of this action,” which might lead to admissible evidence. Indeed, the court observed that Kathleen’s public Facebook profile shows her “smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house.”
 
But the court did not stop there. Rather, it explained that in light of the relevant public portions of such sites, there was a “reasonable likelihood” that the private portions may contain “further evidence” that contradicts Kathleen’s claims and deposition testimony. According to the court, preventing the defendant from accessing those private postings would be in “direct contravention” of the liberal disclosure policy in New York state.
 
Thus, the court concluded, it was “reasonable” to infer from Romano’s “limited” public postings that her private pages would also contain relevant material, and granted the defendant access to said accounts. Otherwise, the court felt it would be “condon[ing] plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”
 
Interestingly, Romano relied heavily on both federal and Canadian law, which took a particularly hard-line approach to this exact issue, in reaching its decision.
 
As for Romano’s asserted privacy concerns, the court said she lacked a reasonable expectation of privacy because neither service “guarantee[s] complete privacy,” and stated that 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 else they would cease to exist.”
 
Lastly, the court observed that the defendant’s need for such information “outweigh[ed]” any privacy concerns because prior attempts to obtain such information had already been “thwarted.”
 
Following the Trend: Pennsylvania Gets on Board
 
Pennsylvania is now in accord with the holding of Romano. In McMillen v. Hummingbird Speedway Inc., a strikingly similar case out of Jefferson County (decided Sept. 9, 2010), the court likewise denied Bill McMillen’s request to keep his private MySpace and Facebook pages from being discoverable where comments on his public site indicated he may have “exaggerated his injuries.” Although the approach in McMillen differed slightly — i.e., whether a privilege applied to protect social networking sites — the rationale and holding remained much the same: such sites are designed for people to share information, so any expectation of privacy was not reasonable.
 
In concluding that “all rational means for ascertaining the truth” should be used, the court resoundingly stated access to such sites should be “freely granted.”
 
Putting Privacy “In Context”: Further Opening the Door to Personal Communications
 
Although Romano may be the most recent case on this issue, it is nowhere near the most expansive. On May 11, 2010, the Southern District of Indiana decided EEOC v. Simply Storage Management LLC, which held that relevant material is not “shielded from discovery simply because it is ‘locked’ or ‘private.’” Citing the same authority as Romano, the court opined that although a requesting party is not entitled to all nonrelevant material on a site, “merely locking a profile from public access does not prevent discovery either.”
 
Decided in the context of alleged sexual harassment, Simply Storage expanded discovery regarding the mental health of two plaintiffs beyond communications that “directly reference the matters alleged in the complaint” — stating, instead, that such a “restrictive” approach might not yield information inconsistent with other potential causes of the injury. The court also permitted discovery of communications by third parties if they placed the claimants’ own communications “in context.”
 
As a result, the court permitted discovery into any profiles, postings or messages that “reveal, refer or relate” to any emotional feeling or mental state, or any communication that could reasonably be expected to “produce a significant emotion, feeling or mental state,” and instructed the EEOC to “err in favor of production.” The court was careful to limit its holding to situations where claimants allege “severe emotional distress.”
 
Getting the Goods: Why “Private” Information Is Not Available from Social Networking Sites
 
In Crispin v. Christian Audigier Inc., decided only 15 days after Simply Storage, the Central District of California granted the plaintiff’s motion to quash subpoenas issued to social networking sites (including Facebook, MySpace and Media Temple) in the context of a breach of contract and intellectual property dispute.
 
After an extensive discussion of the Federal Stored Communications Act (SCA) — which prevents providers of communication services from divulging private communications to certain entities and individuals — the court quashed the subpoenas to the extent they sought e-mail and private messages. As for other, more public sources — such as the plaintiff’s Facebook wall postings and MySpace comments — the court said it did not have a sufficient record before it, but that a review of plaintiff’s “privacy settings would definitively settle the question.”
 
Implications
 
Claimants would likely not be surprised to learn that what they publicly post on Facebook and MySpace may come back to haunt them (it is public, after all).
 
They may be more surprised to learn that even information intentionally deemed private is also up for grabs to savvy defense lawyers. Such information can be useful to impeach a plaintiff’s credibility regarding the impact of an accident on their life, or as a means to assess the value of their claim.
 
These recent decisions represent a growing trend toward greater transparency for even protected content on social networking sites. A few general propositions emerge.
 
First, the type of case matters. Romano, McMillen and Simply Storage involved either personal injury or discrimination charges. Such disputes involved personal accusations concerning damages or mental/emotional states. And even then, broad discovery was only permitted because of the severe distress alleged. In Crispin, however, the issue was one of contract interpretation, a much more benign claim.
 
Second, claimants’ asserted privacy concerns are being marginalized by the courts. This should come as no surprise, really: Facebook’s privacy policy (last updated Oct. 5, 2010) essentially states that information is posted at your own risk. Further, as observed in Simply Storage, the release of private or embarrassing information is “inevitable” when alleging those sorts of injuries. The existence of protective orders also seems to ease tensions regarding such purported invasions of privacy. Courts simply are not buying the “I thought it was private” line anymore.
 
Third, how (and when) such information is requested also makes a difference. Official channels — i.e., depositions and discovery requests to the claimant — are obviously the preferred method. In fact, a March 2009 ethics opinion from the Philadelphia Bar Association states that surreptitiously gaining access to an unrepresented witness’ site via a third-party intermediary posing as a potential friend is unethical; the New York City Bar Association issued an identical opinion regarding unrepresented persons in September 2010.
 
On the other hand, the New York Bar Association, in Ethics Opinion 843, expressly stated that it was permissible for an attorney to use the public sections of another party’s social networking site in a pending litigation. As Crispin makes clear, social networking sites are prevented from releasing private content without user consent. Thus, the best approach is to have a court compel reluctant claimants to comply with requests for access. This is especially true for deleted material claimants may no longer possess. Courts are recognizing that — like e-mails — online content that was deleted is never truly gone.
 
As for timing: the earlier the better. An initial opposition will likely provide fodder for an argument regarding a “need for access” to information unobtainable elsewhere — which also serves to outweigh asserted privacy concerns.
 
In today’s world, lawyers will likely be deemed remiss if they do not ask claimants about such sites. In fact, at least one labor and employment practitioner believes the first thing to do upon receiving an employee-filed complaint is to review their social networking sites — even before reading the complaint. As the above cases reveal, courts increasingly believe it is incumbent on counsel to explain to clients that posted documents may be relevant to allegations in the pleadings. Failure to do so could result in the value of a case being severely decreased, or, worse yet, dismissed. In truth, this social “net” may be catching more than claimants — especially personal injury and employment claimants — ever imagined.
 
Reprinted with permission from Law360. For more information, visit www.law360.com.
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