Litigation and social networking sites

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Judge Grants Discovery of Postings on Social Media
Plaintiff must give defendant access to private postings from Facebook and MySpace that could contradict personal injury action claims
by Noeleen G. Walder
New York Law Journal

September 24, 2010
A plaintiff must give a defendant access to private postings from two social networking sites that could contradict claims she made in a personal injury action, a Suffolk County, N.Y., judge has ruled.

Acting Justice Jeffrey Arlen Spinner (See Profile) of New York's Suffolk County Supreme Court held that precluding defendant Steelcase Inc. from accessing Kathleen Romano's private postings on Facebook and MySpace "not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff's attempt to hide relevant information behind self-regulated privacy settings."

The judge continued, "In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action."

In 2003, Romano fell off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained "serious permanent personal injuries" and had to undergo multiple surgeries, she sued Steelcase Inc., the manufacturer of the chair, and the chair's alleged distributor, Educational & Institutional Cooperative Services Inc.

Among other things, she maintained that she had herniated discs, restricted motion in her neck and back, and "pain and progressive deterioration with consequential loss of enjoyment of life."

However, Steelcase said in court papers that Romano's claims were belied by public portions of her Facebook and MySpace profiles, which "reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation."

For example, Steelcase said Romano's public profile on Facebook depicted her "smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed."

Steelcase subsequently served Romano with a notice for discovery requesting "authorizations to obtain full access to and copies of Plaintiff's current and historical records/information on her Facebook and MySpace accounts."

After she refused to provide this information, Steelcase moved by order to show cause to obtain access to Romano's accounts.

In opposing the motion, Romano insisted that she "possesse[d] a reasonable expectation of privacy in her home computer."

Romano argued that Steelcase's claims about her active lifestyle were based on nothing more than "speculation and conjecture" and characterized the discovery request as a "blatant attempt by defendant to intimidate and harass" her.

"Ordering the release of all private messages" on her accounts "would permit this defendant to obtain wholly irrelevant information as well as extremely private information to the extreme prejudice of plaintiff," Romano contended in court filings.

Facebook also opposed Steelcase's request, saying that the manufacturer should request the communications directly from Romano rather than from the social networking site.

Producing Romano's profile without her consent violates the federal Stored Communications Act, which bars Facebook from "producing a non-consenting subscriber's communications even when those communications are sought pursuant to a court order or subpoena," Facebook argued in court papers.


In Romano v. Steelcase Inc., 2006-2233, Spinner disagreed that turning over the documents amounted to a violation of Romano's privacy.

"Plaintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action… Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff's injury," the judge wrote.

He said it was "reasonable to infer from the limited postings on Plaintiff'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."

Spinner also rejected Romano's argument that the release of the information would violate her Fourth Amendment right to privacy.

He noted that MySpace cautions users to remember that their profiles are public forums.

Facebook also warns users that they post content on the site at their "own risk" and that "no security measures are perfect or impenetrable."

"Please keep in mind that if you disclose personal information in your profile or when posting comments, messages, photos … or other items, this information may become publicly available," Facebook says in its privacy policy.

"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 or they would cease to exist," Spinner wrote.

The judge ordered Romano to deliver to Steelcase an authorization so that the defendant could gain access to her Facebook and MySpace records, "including any records previously deleted or archived by said operators."

Robert Kelner, who represented Romano, said in an interview that his client is considering an appeal.

"We feel that there is a huge difference between what an individual puts on the electronic media for public consumption and what you put on the media that is designated [as] private," said Kelner of Kelner & Kelner, a New York Law Journal columnist.

He said what occurred here was equivalent to tearing down curtains blocking the view into an individual's home.

"This to us is your living room or bedroom electronically," he said.

But Richard Raysman, a partner at Holland & Knight and a New York Law Journal columnist who is not involved in the case, called the defendant's discovery request "perfectly valid" provided that it is related to the plaintiff's injury.

The defense is entitled to obtain a plaintiff's private information regardless of whether it is in a photo album at home or in cyberspace, which is where most people now store their photos, Raysman said.

James A. Gallagher Jr. of Gallagher & Faller in Garden City, who represented Steelcase, called the decision a "positive step" forward in arriving at the truth.

John T. Ryan & Associates of Riverhead represented Educational & Institutional Cooperative Services.

Aaron Rubin of Orrick, Herrington & Sutcliffe represented Facebook. He did not return a call for comment. MySpace did not take a position on the motion.
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