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Court Allows Discovery of Deleted Facebook and MySpace Pages

By Kristine L. Roberts, Litigation News Associate Editor – November 16, 2010

Social networking websites such as Facebook and MySpace can be a tremendous source of discoverable information. Although litigators are now more routinely making or receiving requests for information stored on social networking websites, courts are still grappling with issues such as the breadth of discoverable information and privacy concerns.

Personal Injury Claims and Social Networking Websites
In Romano v. Steelcase, Inc., a New York trial court entered an order granting the defendant’s request for access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.” The plaintiff had sued seeking damages for personal injuries that she claimed left her confined to her house and unable to participate in activities she previously enjoyed.

The defendant contended that the public portions of the plaintiff’s social networking pages showed that, contrary to her claims, the plaintiff still maintained an active lifestyle and that she was traveling out of state. Noting that the plaintiff’s public profile page on Facebook shows her “smiling happily in a photograph outside the confines of her home despite her claims that she has sustained permanent injuries and is largely confined to her house and bed,” the court agreed. The court ruled that the defendant was entitled to the requested discovery because both the public and private portions of the plaintiff’s Facebook and MySpace pages were reasonably likely to contain additional evidence of her activities.

A Privacy Setting Does Not Mean a Right to Privacy
The court rejected the plaintiff’s argument that allowing discovery of her Facebook and MySpace accounts would violate her right to privacy. It noted that New York courts had not yet addressed whether a right to privacy exists regarding “what one posts on their online social networking pages such as Facebook and MySpace.”

Because neither Facebook nor MySpace “guarantee complete privacy,” the court determined that the plaintiff had no “legitimate reasonable expectation of privacy” in the information she posted on those websites. “[W]hen 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,” it ruled. Quoting one commentator, the court stated, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

“As a general rule, it is difficult to argue convincingly that someone has a reasonable expectation of privacy when posting personal information on the Internet even if she uses the stricter privacy settings that may be available through a website,” says Betsy P. Collins, Atlanta, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee.

“Very little on the Internet is truly private,” agrees Charla B. Stevens, Manchester, NH, cochair of the Section of Litigation’s Family Law Litigation Committee. In Romano, “the discovery sought was clearly relevant to show the difference in what the plaintiff was claiming and what she was doing in real life,” says Stevens.

In light of decisions such as Romano, litigators also may consider advising their clients to limit their Internet activity during litigation. “Lawyers often tell clients to stop posting on Facebook and other sites. Clients need to know that anything can be used against them in litigation—whether in the context of domestic disputes, personal injury, or employment matters,” says Stevens.

Keywords:litigation, privacy, discovery, social networking

Related Resources

  • December 10, 2010 – It is surprising to me, and somewhat dismaying as a commentary on general understanding of simple things, that a decision would even be sought on this. It would seem altogether apparent to me that posting in a public forum is public.


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