Friday, April 1, 2011

Plaintiff’s ‘Private’ Social Networking Postings No Longer Really ‘Private’

Complete Facebook and MySpace History Can (and Should!) be Obtained in Discovery

Investigation into the publicly accessible postings of a plaintiff or claimant on social networking websites such as Facebook and MySpace has long been an important part of routine discovery practice. Though ethical considerations prohibit defense counsel from soliciting increased access to a plaintiff’s social networking pages through “friend requests” or other similar means, material that a plaintiff has made publicly available to all on the internet is fair game. Until recently, the publicly available postings of a plaintiff were all that were generally available to the defense. A recent decision from a trial court in New York and a resulting software change made by Facebook in response to that decision may, however, give defendants access to a personal injury plaintiff’s complete Facebook history.

In Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), a personal injury case in which the plaintiff was claiming to have suffered loss of enjoyment of life and permanent injuries, the court found that production of the plaintiff’s entries on her Facebook and MySpace accounts “would not be violative of her right to privacy” and that when the plaintiff created her Facebook and MySpace accounts, “she consented to the fact that her personal information would be shared with others.” Id. at 657. In so holding, the court noted that such sharing “is the very nature and purpose of these social networking sites else they would cease to exist.” Id. (emphasis added). The court ultimately granted defendant’s motion to compel and ordered the plaintiff to give the defendant access to her “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.” Id. at 657.

Largely in response to the court’s order in Romano, Facebook recently implemented a change in its software that makes accessing one’s current and historical Facebook pages and accounts a very simple process – through a few clicks, a user can obtain, via email, a link to a .ZIP file containing everything that the user has ever posted to Facebook or has had posted on his or her “wall.” This file contains a user’s complete Facebook history and it can be very easily transferred to a disc, sent via email, or posted to a large-file transfer site.

Learn more about the Romano decision and about obtaining this .ZIP file through discovery by reading a more complete article on the issue here. You can also contact the author directly at or by phone at 603-629-4575.

-Submitted By Adam Mordecai, Esq.

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