Are Your Facebook Posts Discoverable?

Access to Social Media by Opposing Counsel In Your Lawsuit

Believe it or not, access to a Plaintiff’s Facebook and other “social media” postings may be uncovered by the opposing party in a lawsuit, depending on the circumstances.

New York Courts have established a balancing test to determine whether content on social media sites are “material and necessary,” and if so, whether disclosure would result in a violation of privacy rights.

Introduction

Although it may seem like an invasive violation of one’s right to privacy, Plaintiffs are putting their physical and emotional conditions “in controversy” by bringing a personal injury lawsuit. Thus, they cannot shield material which would be necessary to a defense. This includes material that may be useful to both the issue of damages and the extent of injury. See Romano v. Steelcase, Inc., 2010 NY Slip. OP. 20388 (N.Y. Sup. Ct. Suffolk City, September 21, 2010).

Both parties are free to request social media profiles and related information. Requests should not be overly broad, and not every request will be granted. Winchell v. Channing Lopiccolo, 7397/2010, NYLJ 1202580061065 (Sup., OR, decided October 19, 2012). Overly broad requests are sometimes even thrown out all together. Kregg v. Maldonado, 11-02294, NYLJ 1202573409332 (App. Div., 4th, Decided September 28, 2012).

The Court’s Test of a Request for Social Networking Material

Must demonstrate “good faith”: In D’Agostino v. YRC Inc., (565/2011, NYLJ 1202556860064 (Supp., OR, May 17,2012), the Defendants argued that during her deposition, the Plaintiff had testified to using social media websites and “regularly…sharing her feelings online. ” The court reasoned that this was enough to demonstrate good faith.
Satisfy New York’s two prong test: established by People v. Harris , 36 Misc.3d 613 (Crim Ct. New York County, June 30, 2012).
Must have specifics of what is being sought (this can be satisfied through public profile searches and/or deposition testimony);
There must be a factual predicate for seeking such evidence. See McCann v. Harlesville Insurance Co. of New York , 2010 N.Y. Slip. Op. 08181 (November 12, 2010).

What About Privacy Rights?

Though your social media accounts are certainly unique, technically (and, most importantly, legally), they are not your property. Rather, they belong to the third-party domain holders who host your content (Facebook, etc.) as per the user agreement “signed” when first signing up for such services.

Accordingly, in Harris, supra, the court concluded that when “the third party [Facebook] is in possession of the materials,” the court may issue an order for the discovered if “relevant and evidentiary”. (36 Misc.3d 613). The Court found no traditional expectation of privacy “in a tweet sent around the world”. (Id.)

Similarly, in Romano, supra, the Court looked to Facebook’s policies and concluded that when the Plaintiff created her account, she consented to the fact that her personal information would be shared. Indeed, the Court reasoned, sharing information is the broad purpose of such sites. Thus, the court concluded that the Plaintiff could not claim a reasonable expectation of privacy (2010 NY Slip. OP. 20388).

Though the Plaintiff in Richards v. Hertz argued that disclosing her profile would violate the right to privacy, the Court held that Plaintiff’s privacy concerns were outweighed by defendant’s need for such information. (100 A.D. 3d 728 (2nd Dept., November 14, 2012). Furthermore, it is interesting to note that “no common law right to privacy” exists in N.Y. See Ava v. NYP Holdings, Inc., 20 Misc. 3d 1108A, (Sup. Ct. NY, 2008).

“Privacy Settings” Are A False Sense of Security

Privacy settings do NOT shield profiles from ultimately being discovered in a legal setting. Google your name. Chances are the public portion of your Facebook profile is the first or second website listed. Click on it: what do you see? Yes, that’s your profile photo. What you see, anyone can see, including internet savvy lawyers. No login required, no discovery request submitted. These lawyers may not access the inner-workings of your profile (at least not yet), they might not see every status update, wall posting or event invitation. But based on what they can see, they can request access to your profile. Even your public profile photo can pose as material evidence to support a defense. Based on such “public material,” Courts have found a reasonable likelihood that access to private accounts would yield further material evidence. And deleted profiles and pages are not a shield either. See Romano, as well as Patterson v. Turner Construction Co., 2010 NY Slip. OP. 20388 (N.Y. Sup. Ct. Suffolk City, September 21, 2010).

In Camera Review — A Happy Compromise?

With controversial evidence, the Court can order a Judge-only in camera review of the materials behind closed doors, in chambers, before deciding if it should be disclosed to the opposing party. A few cases involving social media evidence have resulted in the Court undergoing a preliminary review of the requested material in the manner, to decide if it is necessary or relevant. See Richards, supra, 100 A.D. 3d 728 and Bianco v. North Fork Bancorporation, Inc., 107069/2010, NYLJ 1202577723444 (Sup., NY, October 10, 2012).

Who loves this approach? The disclosing party, who may likely prefer a Judge first looking at their social media materials as opposed to opposing counsel. A Judge may decide the materials sought are not relevant.

But then again, who doesn’t love this approach? The Courts. In Fawcett v. Altieri, the Court provided analysis of the in camera review process and concluded that review of social media materials in this manner posed a judicial economy problem, a costly and detrimental use of the Court’s time and precious resources. Thus, the court may be reluctant in the future to analyze every poke, photo and friend request and determine relevancy (100008/12 NYLJ 12025846343383 (Sup. RI, January 11, 2013).

For the time being, in camera review appears to be a happy compromise between the Plaintiff’s privacy concerns and the defendant’s need for access to evidence posing possible defense. However, it may ultimately not be a viable option for the court. In the meantime, cases will continue to come down as the Courts’ resolution of this rapidly-expanding area of discovery disputes evolves further.

Golriz Amid, as part of a legal externship program through New York Law School, contributed reporting to this article.