December 10, 2010
Ganz Wolkenbreit & Siegfeld @ 5:14 pm
Facebook and MySpace, as well as other social networking sites, are often used by individuals to post status updates, including everything from the most mundane comments or details about their locations to specific play-by-plays about what they are doing at any given moment.
People also frequently post photographs on their Facebook or MySpace pages and comment on other peoplesâ€™ postings and photographs. In New York, even what appear to be mundane postings may be discoverable in civil litigation.Â New York has fairly liberal civil discovery laws, allowing a party to discover a wide range of information from other parties in a case. In September of this year, a New York State Supreme Court Judge held that a defendant could access a plaintiffâ€™s private postings on her Facebook and MySpace pages. That case, Romano v. Steelcase, Inc., is a personal injury case wherein the plaintiff claimed that she had suffered injuries such that she was largely confined to her house and bed.
However, photographs on her public Facebook profile appeared to contradict these claims, and the Judge allowed defendants to discover her private Facebook postings and photographs. Her choice of privacy settings on her Facebook page was deemed to be irrelevant. The Court held that it was â€śreasonable to infer from the limited postings on Plaintiffâ€™s public Facebook and MySpace profile pages that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.â€ť The Judge ordered the plaintiff to authorize the defendant to access Facebook and MySpace records,including deleted or archived records.
Similarly, the New York State Bar Association Committee on Professional Ethics also recently released an opinion concerning whether, under New Yorkâ€™s Rules of Professional Conduct, it is ethical for an attorney to view a partyâ€™s social network pages. The committee determined that so long as the attorney did not engage in any deception, the attorney could access and view the public social network pages of a party to search for impeachment material.
Although Romano was a personal injury case, it has implications for discovery in other types of civil litigation. In fact, an Indiana Federal Court, in a case from May 2010 involving sexual harassment resulting in severe emotional distress, found that content from social networking sites like Facebook must be produced when relevant to the claim or defense. (EEOC v. Simply Storage Management, LLC).
Despite a number of cases ruling that Facebook postings and comments mayÂ be discoverable, on May 26, 2010, a California Federal Court ruled that the Stored Communications Act portions of the Electronic Communications Privacy Act (enacted in 1986 prior to the advent of most social networking sites and generally not appropriately worded to apply to such sites) would provide some protection to content on social networking sites and, if an individual chooses the appropriate privacy settings, some material may remain undiscoverable. The California case, Crispin v. Christian Audigier, Inc., quashed subpoenas for material on MySpace and Facebook sites related to the plaintiffâ€™s postings on those sites. As of the date of publication of this article, the need for amendment of the Electronic Communications Privacy Act was being addressed by the Senate Judiciary Committee in order to bring it in line with modern technologies.
Despite the California case which found that some protection exists for postings on social networking sites, parties to litigation would be wise to limit their postings and to be aware that anything they post may be discoverable in litigation. Furthermore, because such postings may have an impact on employment law cases, such as the sexual harassment case in Indiana, New York employers may want to establish policies preventing or limiting employees from posting content related to the employer, to the office environment and, particularly, related to any other employees.
Although it is unclear how any individual court may rule in this new arena, it is important to be aware that your postings may not be private, regardless of your privacy settings.
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