“Private” Facebook and MySpace Postings are Discoverable

A New York trial court has ordered a personal injury plaintiff to produce her Facebook and MySpace postings, notwithstanding that plaintiff self-designated them as private. Justice Jeffrey Arlen Spinner, in Romano v. Steelcase Inc., 2010 N.Y. Slip Op. 20388, 2010 N.Y. Misc. LEXIS 4538 (N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010), reasoned that New York’s “liberal discovery policies” favored allowing access to posts that might undermine plaintiff’s claim for loss of enjoyment of life and further that, “as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.” Read the decision here.

The Romano opinion suggests that, if a discovering party makes a threshold showing that content posted on social media websites is relevant, discovery may be had: “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.” As with traditional modes of discovery, it appears that “fishing expeditions” will not be allowed.

Most of the cases the Romano court cited where access to social media was granted were likewise personal injury actions in which the individual plaintiffs were ordered to produce their online journals. Still, the opinion signals to businesses that they, too, might have to produce content posted on social media sites. With more and more businesses promoting themselves through this medium, the attendant preservation obligations should be considered. Posting potentially discoverable information with third-parties can complicate compliance.

For the same reason, businesses should be mindful of what their employees post on social networking sites. An employee’s postings may be deemed to reflect on the company and might even bear on matters relevant to a lawsuit in which the company is a party. All too often, what people say online is as candid as what they might say to a few close co-workers behind closed doors. Yet, online posts are available for the world to see. Even seemingly innocuous posts — for example, “I was in way over my head today at work” — can prove damaging in litigation. The most prudent approach would include both restricting employees’ access to these sites at the office and implementing a social media policy addressing employees’ online postings.

Additional discussions on this topic from members of the Gibbons Employment Law Department and the E-Discovery Task Force can be found here and here.

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