Filing a Personal Injury Claim? Get Ready to Produce Your Private Facebook Profile

Filing a Personal Injury Claim? Get Ready to Produce Your Private Facebook Profile

The scope of relevant discovery for social networking sites (SNS) is like Goldilocks – it can’t be too broad or too narrow, it has to be just right for the courts to allow it. This is especially true when the case involves emotional and mental health claims.

In Romano v. Steelcase, Inc., the plaintiff filed a personal injury action alleging that the plaintiff had sustained permanent injuries and that she can’t participate in certain activities, which impacts her enjoyment of life. Defendant examined plaintiff’s public profile on Facebook and MySpace and found evidence that the plaintiff “has an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity.”

The defendant tried to question the plaintiff about the account during a deposition, and also filed discovery notices requesting “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts,” pursuant to the Stored Communications Act (18 U.S.C. § 2701 et seq.). Plaintiff refused to provide such authorizations.

In New York, pursuant to CPLR 3101, there shall be “full disclosure of all non-privileged matter which is material and necessary to the defense or prosecution of an action.” Trial courts have broad discretion concerning discovery and the New York Courts have held that the “‘material and necessary’ standard is to be interpreted liberally, requiring disclosure of any facts bearing on the controversy.” Discovery requests are decided on a case-by-case basis, and it does not matter that the information might not be admissible at trial.

The court stated that “plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action . . . discovery is generally permitted with respect to materials that may be relevant to both the issue of damages and the extent of a plaintiff’s injury.” The court found that the information sought by defendant regarding plaintiff’s Facebook and MySpace accounts is both material and necessary to the defense of this action, and preventing defendant from accessing plaintiff’s private postings would contravene New York’s liberal disclosure policy.

Furthermore, the plaintiff’s concern that production of information from her accounts would violate her privacy rights was quickly dismissed by the court. Quoting Katz v. United States, 389 U.S. 347, 351 (1967), the court stated “the Fourth Amendment protects people, not places,” and clearly held that expectations of privacy are judged under the reasonableness standard.

The most intriguing aspect of the decision was the New York Court’s firm statement that, due to the nature of Facebook and MySpace, the plaintiff had no reasonable expectation of privacy in her social networking site posts. It is a known fact that social networking sites are designed for the (somewhat) public sharing of information about our lives; however, to have a court put it so bluntly

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privacy in our online postings, regardless of how “private” we make our profiles, is illustrative of the changing landscape of eDiscovery law.

Private no longer means private.


Courtney O’Brien is a student at Seton Hall University School of Law, Class of 2013, where she serves as an Associate Editor of the Seton Hall Journal of Sports and Entertainment Law. Prior to law school, she was a 2010 magna cum laude graduate of Villanova University, where she majored in Political Science and minored in sociology. Presently, Courtney serves as the Seton Hall Legal Intern Chair in the Appellate Division of the Bergen County Prosecutor’s Office.

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