Wednesday, December 08, 2010

Facebook And Other Social Networking Websites Are Subject To Discovery In Litigation.

Social networking websites, like Facebook, allow users to share information about their personal lives, including thoughts, descriptions, and photographs of what they are doing and thinking, often in "real time."  Facebook is the most widely used of these websites.  According to Facebook's statistics page, it has more than 500 million active users; more than half of  users log onto the website each day; and users spend more than 700 billion minutes on the website each month.  That's a lot of activity -- which is subject to discovery if a Facebook user is involved in litigation.

This issue was addressed recently by Justice Jeffrey Arlen Spinner of the New York Supreme Court for Suffolk County in the case of Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010).  Romano was a personal injury action in which the plaintiff claimed she had sustained serious and permanent injuries that restricted her daily activities, largely confined her to bed, and affected her enjoyment of life.  Her public profile on Facebook, however, showed her "smiling happily" "outside the confines of her home."  It further revealed that the plaintiff had travelled to other states and "has an active lifestyle."  In light of this apparent contradiction, the defendant sought access to the plaintiff's complete Facebook account, including deleted pages, but the plaintiff steadfastly refused.

In a thorough decision, Justice Spinner ruled that the information sought by the defendant was "material and necessary" to the litigation (specifically, it was relevant to the nature and extent of the plaintiff's alleged injuries) and that the defendant's need for the information outweighed the privacy concerns raised by the plaintiff.  Indeed, given that the very purpose of Facebook is to share personal information with others, the judge found that the plaintiff "has no legitimate reasonable expectation of privacy" in her Facebook account and cannot "attempt to hide relevant information behind self-regulated privacy settings."  The judge ordered the plaintfif to provide the defendant with access to her Facebook account.

Other courts have reached similar conclusions about the discoverability of social networking websites.  For example:

EEOC v. Simply Storage Mgt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010) (ordering disclosure and explaining that "a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery").

Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering disclosure and explaining that "relevance of the content of Plaintiff's Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff's own determination of what may be 'reasonably calculated to lead to the discovery of admissible evidence'").

Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009) (ordering disclosure and explaining that the information sought by the defendant's subpoenas for the plaintiff's Facebook, My Space, and Meetup accounts "is reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case").

The upshot is that what a person puts on the internet for other people to see probably will have to be disclosed to the other side in the event that the person is involved in a lawsuit.