Courts Grapple With Discovery of Posts

Social media allows users to post their photos and videos online and discuss their lives, health, and interests. Indeed, Facebook recognizes that “one of the primary reasons people use Facebook is to share content with others. Examples include when you update your status, upload or take a photo, upload or record a video, share a link, create an event or a group, make a comment, write something on someone’s Wall, write a note, or send someone a message.”^[2] Sharing this personal information can be virtually instantaneous and, of course, worldwide.

That, as might be expected, can lead to a host of litigation issues, including whether information that parties to a lawsuit have made available via social media is discoverable.^[3] The recent decision in Romano v. Steelcase Inc.^[4] sheds significant light on that issue under New York law.

Analysis of the discoverability of social media content begins with CPLR 3101, which provides for full disclosure of all non-privileged matter that is both material and necessary to the defense or prosecution of an action. Generally speaking, trial courts have broad discretion when supervising pretrial discovery, including in determining what is “material and necessary.”[5]

Courts have decided that something is “necessary,” for purposes of pretrial discovery when it is needed, even if it is not indispensable.[6] Courts have said that, together, the “material and necessary” standard should be interpreted liberally, requiring disclosure of any facts bearing on the controversy that will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of “usefulness and reason.”[7]

Courts decide discovery requests on a case by case basis, keeping in mind what they refer to as the “strong public policy” in favor of open disclosure.[8]  If a court finds that the information sought is sufficiently related to the issues in litigation so as to make the effort to obtain it in preparation for trial reasonable, then they typically will permit discovery.[9] That may very well be the result even if the information sought might not be admissible at trial as pretrial discovery extends not only to proof that is admissible, but also to matters that “may lead to the disclosure of admissible proof.”[10]

The court considered all of these principles when it concluded that disclosure was warranted in the Romano.

The plaintiff in Romano brought suit against Steelcase Inc. for personal injuries she claimed she had suffered.  According to Steelcase, its review of the public portions of the plaintiff’s MySpace and Facebook pages revealed that the plaintiff had an active lifestyle during the time period she claimed her injuries prohibited such activity.

In light of this, Steelcase said that it had sought to question the plaintiff at her deposition regarding her MySpace and Facebook accounts, but to no avail. Following those depositions, Steelcase served the plaintiff with a Notice for Discovery and Inspection requesting, among other things, “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”

The plaintiff refused to provide the requested authorizations, and Steelcase applied for an order granting it access to the plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information. Steelcase argued that the plaintiff had placed certain information on these social networking sites that it believed was inconsistent with claims she was making with respect to the extent and nature of her injuries, especially with respect to her claims for loss of enjoyment of life.

The court agreed with Steelcase and granted its application. The court explained that plaintiffs who place their physical condition in controversy may not shield from disclosure material that is necessary to the defense of the action.[11] Accordingly, it continued, in an action seeking damages for personal injuries, discovery generally is permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff’s injury.[12] That includes, the court added, a plaintiff’s claim for loss of enjoyment of life.[13] 

The court explained that the plaintiff claimed that she had sustained permanent injuries as a result of an accident and that that she could no longer participate in certain activities or that these injuries had affected her enjoyment of life. In the court’s view, the information sought by Steelcase regarding the plaintiff’s Facebook and MySpace accounts was “both material and necessary” to Steelcase’s defense of the lawsuit, and/or could lead to admissible evidence.

In this regard, the court said, it appeared that the plaintiff’s public profile page on Facebook showed her smiling happily in a photo outside the confines of her home despite her claim that she had sustained permanent injuries and was largely confined to bed.

In light of the fact that the public portions of the plaintiff’s social networking sites contained material that apparently was contrary to her claims and deposition testimony, there was “a reasonable likelihood” that the private portions of her sites might contain further evidence, such as information regarding her activities and enjoyment of life.  All of that, the court added, was material and relevant to Steelcase’s defense.

The court ruled that preventing Steelcase from accessing the plaintiff’s private postings on Facebook and MySpace “would be in direct contravention to the liberal disclosure policy in New York State.”^[14] Moreover, it declared, denying discovery would condone what the court characterized as the plaintiff’s attempt “to hide relevant information behind self-regulated privacy settings.”

Interestingly, the court also rejected the plaintiff’s privacy concerns, deciding that disclosure of her entries on her Facebook and MySpace accounts would not be violative of her right to privacy and that, in any event, any such concerns were outweighed by Steelcase’s need for the information.

The Romano court reasoned that, because neither Facebook nor MySpace guaranteed complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. In this regard, it referenced Facebook’s privacy policy, which currently states that “no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available.”^[15]

Thus, the court decided, because the plaintiff knew that her information might become publicly available, she could not claim that she had a reasonable expectation of privacy. The court also noted that Steelcase had attempted to obtain the information via other means (e.g., via deposition and notice for discovery), but that they had proven to be inadequate. It then concluded that without access to this information, Steelcase would be “at a distinct disadvantage in defending this action.”

‘McCann’ Decision

Notably, the only appellate division case to consider the issue did not order disclosure of the plaintiff’s social network accounts, although it left open the possibility for a properly supported application to compel the disclosure at a future date.[16]

Approximately two months after the Suffolk County Supreme Court decision in Romano, the Appellate Division, Fourth Department decided McCann v. Harleysville Ins. Co. of N.Y., which also concerned the extent of personal injuries that were allegedly sustained by the plaintiff.

Although not set forth in the opinion, it can be inferred that the defendant sought disclosure of the plaintiff’s social media postings based on a general expectation that they would include information as to her activities and lifestyle during the relevant time period. Therefore, after direct inquiry at deposition and documentary demands were not successful, the defendant moved to compel the plaintiff to provide authorizations to allow it to view the plaintiff’s present and historical Facebook account contents. 

However, the court concluded that the defendant failed to set forth an adequate factual foundation to justify the discovery it sought and that the defendant was, essentially, just hoping to conduct an impermissible “fishing expedition” through the plaintiff’s account in hopes of obtaining relevant information.  

Accordingly, although the court left the door open for the defendant to renew its demand for an authorization for release of the plaintiff’s Facebook account contents if a factual basis for it could be shown, the court tacitly rejected the proposition that by their very nature, social media postings contain discussions of plaintiff’s activities and state of mind that are material and relevant to a personal injury claim.

The court signaled its intention, therefore, to hold the proponent of discovery of social media to what may be a difficult burden to meet if the plaintiff actively opposes it.

There is a clear distinction between the Romano and McCann decisions in that the Romano defendants relied on the public portions of the plaintiff’s postings to establish that the material on the plaintiff’s Facebook and MySpace account was relevant to her activities and state of mind. No corresponding showing appears to have been made in McCann, although it is far from clear as to whether this resulted from a failure to inquire by defense counsel or a careful lack of publicly available content by the plaintiff.

Ethics Opinions

Regardless, before charging headlong into the social media of a claimant, care must be taken to avoid any ethical impropriety. The issue was addressed last year by a pair of New York ethics opinions.[17]

In Opinion 843, the New York State Bar Association Committee on Professional Ethics opined that a lawyer representing a client in pending litigation may access the public pages of an adverse party’s social media websites for “the purpose of impeachment materials for use in the litigation.”  No doubt this was the type of investigative inquiry that was undertaken in Romano but was either overlooked or unavailable in McCann.

Indeed, what can an advocate do when a plaintiff’s publicly available postings indicate only that social media accounts exist, but do not otherwise disclose the contents of what can be found on those accounts? How far can an advocate go, either alone or through an agent, such as an investigator, to gain access to a claimant’s private material by, for example, seeking to “friend” the claimant?

The New York City Bar, in Formal Opinion 2010-2, addressed the question head on. First, it discussed the benefit to the legal system of “informal discovery” and the wealth of information that could reasonably be assumed to be available on social media websites. The city bar concluded therefore that an advocate could access public postings and even request access to “private” portions of a website – i.e., request to “friend” the claimant – so long as it was done without trickery and with full and accurate disclosure of who the person was.  However, neither the advocate nor an investigator could misrepresent who they were or the purpose of their request.

Conclusion

Since the Romano ruling, Facebook has added an application that allows users to download “everything” they have ever posted on Facebook and all correspondence with friends “in a few easy steps.”[18]  The ease with which users can access and download their own information may make requests for disclosure of the information that much more appealing.  

Of course, each decision is going to be fact-determinative. However, at this juncture, New York courts appear to be carefully balancing a properly laid foundation for inquiry against the treasure trove of information that may be found once unfettered access to a party’s social media postings is obtained.

[1] Jon Swartz, “Social media users grapple with information overload,” USA Today, Feb. 1, 2011 (available at http://www.usatoday.com/tech/news/2011-02-01-tech-overload_N.htm).

[2] See http://www.facebook.com/policy.php.

[3] The implications for discovery of The Stored Communications Act, 18 U.S.C. § 2701 et seq., which generally prohibits an entity, such as Facebook and MySpace, from disclosing certain information from an account without the consent of the account owner, are discussed in Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008).

[4] 907 N.Y.S.2d 650 (Sup. Ct. Suffolk Co. 2010).

[5] See, e.g., Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740 (2000); Cabellero v. City of New York, 853 N.Y.S.2d 165 (2d Dep’t 2008).

[6] See, e.g., Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403 (1968).

[7] See, e.g., Hoenig v. Westphal, 52 N.Y.2d 605 (1981).

[8] See, e.g., Andon, supra.   

[9] See, e.g., In re Beryl, 499 N.Y.S.2d 980 (2d Dep’t 1986).

[10] Polygram Holding Inc v. Cafaro, 839 N.Y.S.2d 493 (1st Dep’t 2007).

[11] See, e.g., Hoenig, supra.

[12] See, e.g., Walker v. City of New York, 614 N.Y.S.2d 31 (2d Dep’t 1994).

[13] See, e.g., Orlando v. Richmond Precast Inc., 861 N.Y.S.2d 765 (2d Dep’t 2008).

[14] See, also, Ledbetter v. Wal Mart Stores Inc., 2009 U.S. Dist. LEXIS 126859 (D. Colo. Apr. 21, 2009)(production of content of plaintiffs’ social networking sites was “reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in the case”).

[15]See http://www.facebook.com/policy.php.

[16] McCann v. Harleysville Ins. Co. of N.Y., 910 N.Y.S.2d 614 (4th Dep’t 2010) (affirming denial of order requiring discovery where no factual predicate with respect to relevancy was established).

 [17] New York City Bar Association Opinion 2010-2 (Sept. 2010), available at http://www.abcny.org/Ethics/eth2010.htm, and in the New York State Bar Association Committee on Professional Ethics Opinion 843 (Sept. 10, 2010), available at http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm.

[18] See http://www.facebook.com/video/video.php?v=10150292657680484.

Reprinted with permission from the February 15, 2011 issue of the New York Law Journal. Copyright ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.