Labor: "Private" Social Networking Activity Can Be Discoverable

A recent New York State court decision in a personal injury case serves as a reminder that a plaintiff's social networking activity -- even when designated as "private" -- can, in certain cases, be accessed during pre-trial discovery, providing a potential treasure trove of information for the defense. [Romano v. Steelcase, Inc., 2010 NY Slip Op. 20388 (N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010).]

After falling off a chair in the workplace, the plaintiff in Romano brought a personal injury lawsuit against the chair's manufacturer. Romano claimed that she sustained permanent injuries affecting her "enjoyment of life." According to the defendant, however, publically available information on plaintiff's Facebook and MySpace profiles revealed an "active lifestyle" that belied her claims.

Ultimately, the defendant subpoenaed Facebook and MySpace accounts to obtain copies of plaintiff's profiles, including information marked as "private." Romano refused to provide the authorizations necessary for social networking sites like Facebook and MySpace to disclose such information and sought to quash the subpoenas on privacy-related grounds.

Holding that the plaintiff had no reasonable expectation of privacy in her Facebook and MySpace pages -- even the portions marked as "private" -- the court found that the defendant's need for the information outweighed any privacy concerns. "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," the court explained.

The court specifically pointed to language in the privacy policies of both Facebook and MySpace stating that information shared on these sites may become publicly available. "[W]hen Plaintiff created her Facebook and MySpace accounts," the court explained, "she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings."

Though Romano is a personal injury case, social networking activity is often relevant in employment cases where the employer's liability may turn on evidence regarding the plaintiff's physical activities and emotional state. Defense counsel should not overlook this valuable source of information when developing its discovery strategy.

Vincent A. Cino is a partner in the Morristown, N.J., office of Jackson Lewis LLP. He is the firm's National Director of Litigation.

Vincent Cino

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