Electronic Discovery Law
Finding No Reasonable Expectation of Privacy in Plaintiff's Social Networking, Court Compels Authorization to Disclose Current and Historical Content
Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)
Defendant sought to discover plaintiff’s “current and historical Facebook and MySpace pages and accounts”, including deleted information, on the belief that information posted there was inconsistent with her injury claims. The court granted the motion, despite plaintiff’s privacy concerns, upon finding the information was material and relevant and that plaintiff had no reasonable expectation of privacy, and because the defendant’s need for access outweighed plaintiff’s privacy concerns.
Following defendant’s review of the public portions of plaintiff’s MySpace and Facebook pages which contained evidence of plaintiff’s active lifestyle, including travel “during the time period she claim[ed] that her injuries prevent[ed] such activity,” defendant sought to depose plaintiff or otherwise obtain discovery on the issue to no avail. Defendant then moved to obtain access to her Facebook and MySpace accounts, which plaintiff opposed.
Taking up the motion, the court first established that the information sought was material and relevant to plaintiff’s personal injury claims. In so holding, the court noted that plaintiff’s public profile page showed 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 and bed.” As those photos were “contrary to her claims and deposition testimony”, the court determined “there is a reasonable likelihood that the private portions of her sites may contain further evidence … which are material and relevant to the defense of this action.” The court went on to state that preventing defendant’s access to such materials “would be in direct contravention to the liberal disclosure policy in New York State.”
Regarding plaintiff’s privacy concerns, the court found that production of plaintiff’s MySpace and Facebook entries would not violate her right to privacy, and “that any such concerns were outweighed by Defendant’s need for the information.” Specifically, the court found that “as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.” The court supported this finding by noting that both MySpace and Facebook warned users against an expectation of privacy. My Space, for example, warned users “not to forget that their profiles and MySpace forums are public spaces.” The court concluded:
Thus, when Plaintiff created her Facebook and MySpace accounts, 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. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, "[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."
Regarding defendant’s need, the court noted the failure of its attempts to discover the information through other means, including deposition, and found that without access to the sites which had the potential to disprove plaintiff’s claim, the defendant would be at a “distinct disadvantage”.
Accordingly, plaintiff was ordered to execute authorization permitting defendant’s access to the requested information within 30 days.
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