Social Media – How to Kill a Case in One Status Update

I’m sure all of you are aware of the growing debate and controversy over whether employers should have the right to ask for your Facebook user name and password as a condition of employment. The web is filled with many arguments over what is private and what is not when posted on a social media site, and whether the user’s privacy settings give them a reasonable expectation of privacy for these communications. Regardless of any privacy concerns, the U.S. Federal Trade Commission has now allowed the Social Intelligence Corp (which carries the ironic acronym of SIC) legal permission to search an applicant’s social media as part of their pre-employment background check.

Social media sites are ripe with information about people, many of whom are unaware of the ramifications of what they post. The ramifications of what is posted on any of these sites extends far beyond employment issues. Insurance companies have been scouring social media for years searching for that dancer on a head of a pin that they can use to deny a claim. The sketchy private investigator with a video camera following a plaintiff has been replaced with sketchier people scrolling through social media sites digging up whatever dirt they can. Photographs of an injured plaintiff on a ladder, skiing, laughing and posting “Having a great time four wheeling this weekend” will decimate their case. It is a trap that insurance companies routinely lay for plaintiffs. No matter how old the skydiving picture is, it will be used to suggest to a jury the neck and back injuries caused in the traffic accident actually happened during this plaintiff’s reckless youth.

The emergence of the social media blitz has prompted litigation regarding civil discovery of social media. The decisions are all over the map regarding what constitutes a reasonable expectation of privacy. In the early days of the electronic age the court in United States v. Chan, 830 F. Supp. 531 at 534 (N.D. Cal. 1993) held that “expectation of privacy in an electronic repository for personal data is analogous to a personal address book or other repository for such information.” While the argument could be made that social media sites may fall under the protection of the Stored Communications Act 18 U.S.C. § 2701(a)(1) it is largely uncertain in any jurisdiction whether courts would agree that social media sites such as Facebook and MySpace are a waiver of expectation of privacy when posted on the worldwide web. It’s really kind of a crap shoot. In .Moreno v. Hartford Sentinel, Inc., 172 Cal. App. 4th 1125 at 1130, the court opined that a MySpace.com post was publicized to an audience whose size supported waiver of any privacy right. On the other hand the court in Crispin v. Christian Audigier, Inc., 717 D. Supp. 2d 965 (C.D. Cal. 2010) granted a motion to quash subpoena duces tecums served on four third party businesses and social media networking websites including Facebook and MySpace citing applicable law supported arguments that the social media user had a reasonable expectation of privacy by the way he had set his account or defined his audience. And then we have possibly the most disturbing recent ruling on the subject of social media as civil discovery, Romano v. Steelecase, 907 N.Y.S. 2d 650 decided September 21, 2010.

The Honorable Justice Jeffery Arlen Spinner states in this decision:

“Plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action (see Hoenig v Westphal, supra). Accordingly, in an action seeking damages for personal injuries, discovery is generally permitted with respect to materials that may be relevant to both the issue of damages and the extent of a plaintiff’s injury (see Walker v City of New York, 205 AD2d 755 [2d Dept 1994]), including a plaintiff’s claim for loss of enjoyment of life (see Orlando v Richmond Precast, Inc., 53 AD3d 534 [2d Dept 2008] [in an action to recover damages for personal injuries, records sought were material and necessary to the defense regarding plaintiff's claim of loss of enjoyment of life]; Vanalst v City of New York, 276 AD2d 789 [2d Dept 2000]; Mora v Saint Vincent’s Catholic Med. Ctr. of N.Y., 8 Misc 3d 868 [Sup Ct, NY County 2005]).

Thus, in Sgambelluri v Recinos (192 Misc 2d 777 [Sup Ct, Nassau County 2002]), an action arising out of a motor vehicle accident, the court held that plaintiff’s wedding video taken two years after the incident was clearly relevant to the claim of permanency of injuries. As a result of the accident, plaintiff alleged that she sustained permanent injuries to her neck and back, and testified at her deposition that she can no longer participate in certain activities such as running or horseback riding. Defendant sought a copy of her wedding video on the basis that it might have shown plaintiff in various activities such as dancing, which would be relevant to the claims. Plaintiff objected on 429*429 the basis of the personal nature of the video. The court decided in favor of disclosure, noting its relevancy to the claim of permanency of injuries. In so finding, the court reasoned that although the video is not a surveillance tape, as contemplated by CPLR 3101 (i), the statute’s “language [is] broad enough to encompass any film, photograph or videotape . . . involving a person referred to in paragraph one of subdivision (a), i.e., a party. This is consistent with the general policy of New York courts, allowing liberal disclosure. Moreover, the 1993 addition of subdivision (i) only strengthens the argument for open disclosure.” (Id. at 779-780 [internal quotation marks omitted].)

Like the plaintiff in Sgambelluri, plaintiff herein also claims she sustained permanent injuries as a result of the incident and that she can no longer participate in certain activities or that these injuries have affected her enjoyment of life. However, contrary to plaintiff’s claims, Steelcase contends that a review of the public portions of plaintiff’s MySpace and Facebook pages reveals that she has an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity. In light of this, defendant sought to question plaintiff at her deposition regarding her MySpace and Facebook accounts, to no avail, and following those depositions, served plaintiff with a notice for discovery and inspection requesting, inter alia, “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/ information on her Facebook and MySpace accounts.” Plaintiff has refused to provide the requested authorizations.

Both Facebook and MySpace are social networking sites where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking. Indeed, Facebook policy states that “it helps you share information with your friends and people around you,” and that “Facebook is about sharing information with others.”[1] Likewise, MySpace is a “social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and new friends” and is self-described as an “online community” where “you can share photos, journals and interests with your growing network 430*430 of mutual friends,”[2] and as a “global lifestyle portal that reaches millions of people around the world.”[3] Both sites allow the user to set privacy levels to control with whom they share their information.”

Justice Spinner concluded his opinion as follows:

Further, defendant’s need for access to the information outweighs any privacy concerns that may be voiced by plaintiff. Defendant has attempted to obtain the sought-after information 435*435 via other means: e.g., via deposition and notice for discovery; however, these have proven to be inadequate since counsel has thwarted defendant’s attempt to question plaintiff in this regard or to obtain authorizations from plaintiff for the release of this information. The materials, including photographs, contained on these sites may be relevant to the issue of damages and may disprove plaintiff’s claims. Without access to these sites, defendant will be at a distinct disadvantage in defending this action.

ORDERED, that defendant Steelcase’s motion for an order granting said defendant access to plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects; and it is further ordered, that, within 30 days from the date of service of a copy of this order, as directed herein below, plaintiff shall deliver to counsel for defendant Steelcase a properly executed consent and authorization as may be required by the operators of Facebook and MySpace, permitting said defendant to gain access to plaintiff’s Facebook and MySpace records, including any records previously deleted or archived by said operators.

Yes, an Insurance Company’s wet dream, Justice Spinner.

So, here is the question I pose to all of you personal injury attorneys: In this age of social media and it’s unpredictable stature in the law, how much “privacy” should you allow your clients? Should you ask for their usernames and passwords in your initial client questionnaire, or wait to see if the case moves to litigation where you may receive a discovery request asking for it?

I look forward to your comments and responses.

Maureen