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 amordecai@wiggin-nourie.com or by phone at 603-629-4575.


-Submitted By Adam Mordecai, Esq.
603-629-4575
amordecai@wiggin-nourie.com

Business Resolutions

From the Union Leader to the Boston Globe to the Wall Street Journal, business writers and analysts are predicting a general increase in hiring for 2011. Early economic indicators, including the Dow edging tantalizingly towards 12,000, suggest consumer confidence is returning to a level not seen for several years. This is welcome news after countless reports of layoffs, work force reductions, and hiring freezes.

Is your business ready to add new employees? Talking to business associates has revealed an understandable but dangerous tendency to let hiring procedures, company policies and employee handbooks unattended during this recent negative economic cycle. With many companies experiencing a downturn in earnings, it was hard to justify added expense in reviewing these types of materials. Now, however, with news that the recession is “officially over” and publication of positive predictions, this may be a good time to revisit company procedures and update policies, manuals, and forms. Please feel free to contact me with any questions you may have about the best manner in which to do this; or call Meredith Cook at 629-4511 to discuss updating your employment policies; or, call Mona Movafaghi at 629-4523 to discuss immigration issues. This is an opportune time to revamp employer policies and hiring information, and place your company in a good position to expand your work force as, hopefully, it and the economy grows again.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Thanks for reading . . . and a New Year’s Resolution

Thank you for reading the blog over the past year. There has been a lot of great feedback, and I appreciate the responses, comments and emails.

Blogs are one effective way to update clients and interested people in new developments, and certainly technology makes it easier to share such information. As one of my 2011 resolutions, however, I hope to use technology less and meet with people more. It may be old fashioned in an era of social media, but if there is a blog entry that interested you and that you would like to discuss, or if you have some ideas about a blog posting you would like to see, feel free to give me a call and we can discuss it over coffee or lunch. Sometimes blogs get in the way of meeting people in person, and hopefully 2011 will give me an opportunity to meet more of you face to face.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

BREAKS FOR NURSING MOTHERS

Many of the provisions of the health care reform legislation do not take effect for years to come, but a new breastfeeding break requirement took effect on March 23, 2010 with very little media attention. Employers now are required to provide reasonable break times for female employees for lactation purposes for one year after the child's birth. Employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother, but an employer is not required to compensate an employee for this break unless the employer already provides compensated breaks and the employee uses that time for nursing. Employers must provide a location for breastfeeding, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the pubic. Employers with fewer than 50 employees are not subject to the break time requirement if compliance would impose an undue hardship, determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business.


-Submitted By Meredith Cook, Esq.
603-629-4511
mcook@wiggin-nourie.com

Mediation Update

Last month, the Supreme Court of New Hampshire issued a decision titled “Lillie-Putz Trust v. Downeast Energy” in which the Court affirmed two superior court orders, dismissing the Trust’s writ with prejudice and denying a motion for reconsideration, based on the Trust’s refusal to appear for a scheduled mediation. The case provides a good reminder that Courts take the mediation process seriously, and participants should as well. That approach not only complies with Superior Court Rule 170 – it vastly increases the chances for resolution, and probably saves all participants from higher litigation costs and business disruption.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Get Your Mandatory DOL Posters – for free!

For Employers – Remember, you are required to conspicuously post various Department of Labor notices. The Department has recently sent out reminders that those mandatory posters are available, for free. Go to:

http://www.labor.state.nh.us/mandatory_posters.asp for further details.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com

Appearances at Hearings Can Matter

A September article in the Wall Street Journal highlights how judges and juries may take a person’s appearance into account during a trial. While common sense dictates that parties appearing in court, or before administrative agencies, should dress appropriately, the WSJ article from Thursday, September 2, 2010, written by Christina Binkley and entitled “Opening Statement: What to Wear to Court” provides a good reminder that proper attire shows respect for the tribunal, shows that the person is taking the proceeding seriously, and can even send a more subtle message about the party or witness. While the appearance of a person should not make or break a case, the article is a good reminder that a tribunal may look beyond objective facts, and may consider appearances when making judgments about credibility. The article focuses on the courtroom, but the message holds true for administrative hearings and even meetings with investigators or auditors.

-Submitted By Christopher Pyles, Esq.
603-629-4725
cpyles@wiggin-nourie.com