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With the increasing popularity and extensive use of social networking websites in today’s society, such as Facebook, Twitter, You Tube, and MySpace, it should not be a surprise that there has been a flurry of recent cases where courts have addressed novel issues regarding these websites. This article discusses some of the emerging case law in both New York state and federal courts involving use of social media websites in civil litigation.

On-line Postings, Including Deleted Content,
Are Discoverable if “Material” and “Relevant” to the Case

Over the past two years, a number of decisions in the New York courts discussed the issue of whether postings by a user of social networking site are discoverable. Many of these cases have surfaced in personal injury and matrimonial cases. The trend by the courts is that such content is discoverable if it is “material and necessary” to a claim or defense and/or “could lead to admissible evidence”. [2] In Romano v. Steelcase Inc. , the court held that discovery of plaintiff’s Myspace and Facebook accounts was material and relevant to plaintiff’s claim that she could no longer participate in certain activities as a result of injuries sustained in an accident. In particular, the court took note of plaintiff’s public profile page on Facebook which showed her “smiling happily in a photograph outside the confines of her home” despite plaintiff’s claim that she sustained permanent injuries and was largely confined to her house and bed.[3]

Other Courts have reached similar results.[4] For example, in Loporcaro v. City of New York, [5] the plaintiff sought damages for personal injuries allegedly sustained to his knee during the course of his employment. One defendant argued that plaintiff’s postings to his Facebook were discoverable because they significantly contradicted plaintiff’s claims regarding his purported loss of “enjoyment of life” as a result of his injuries, and that such postings instead, depicted someone who maintained an “active lifestyle”. The Court in Loporcaro , ultimately allowed access to portions of Plaintiff’s Facebook account, including access to certain deleted materials.

Sourdiff v. Texas Roadhouse Holdings, LLC, [6] compelled plaintiff to provide broad access to her Facebook and MySpace accounts. The federal court required plaintiff’s counsel to make arrangements to download and review the contents of plaintiff’s Facebook and MySpace accounts, including any deleted postings , photographs, profile information, postings, messages, comments, status updates and/or other posts, as well as deleted content , that was in any way related to plaintiff’s emotional or mental state, her physical condition, activity level, employment, the litigation, and the injuries and damages claimed by plaintiffs in their complaint.

In a matrimonial action, one court found that statements posted by the defendant, wife, on her blogs at Facebook, MySpace and Tribe were relevant to her demand for non-durational maintenance. In B.M. v. D.M., [7] the wife claimed she was totally disabled, unable to work in any capacity and rarely left home because she was in chronic back pain as a result of an accident. The husband however, brought a series of the wife’s internet blogs to the court’s attention, which contradicted her claims and revealed that she was in fact, engaged in belly dancing. The court stated that the wife’s statements on her internet blogs could be introduced into evidence by the husband as an admission.

“Private” Postings May Also Be Introduced into Evidence

In general, courts have found that the production of electronic communication is not an invasion of an individual’s privacy as there is no common law right to privacy in New York.[8] Moreover, it should be noted that courts have also allowed a litigant access to the private postings of a user’s on-line social network account. For instance in Patterson v. Turner Construction Co., [9] the appellate court stated that postings on plaintiff’s Facebook account, if relevant, were not shielded from discovery “merely because plaintiff used the service’s privacy settings to restrict access”. The appellate court in Patterson , made a comparison and noted that private on-line postings are discoverable in the same way as relevant matter from a personal diary.[10]

It is not to say that limitations do not exist with respect to the discovery of material posted on social network accounts. For example, in McCann v. Harleysville Insurance Co. of New York, [11] the appellate court found that the defendant could not engage in “a fishing expedition” into plaintiff’s Facebook account “based on the mere hope of finding relevant evidence”. The appellate court in McCann found that the defendant failed to establish a factual basis with respect to the relevancy of the evidence.

Conclusion

Users of social media sites, beware, exercise caution with what is posted on-line. Recent cases in New York illustrate that discovery of such postings is permissible when the information sought is relevant and necessary to a claim, defense, or an assessment of damages; and/or could lead to admissible evidence. In addition, users of social media sites should not be “misguided” that enabling privacy settings to restrict access of a user’s account will prevent the discovery of any material posted thereon. Even content a user deleted from an on-line social network if relevant, may be subject to disclosure.

[1]

Mr. Peirez is a senior partner and Ms. Marrali an associate in Reisman Peirez Reisman & Capobianco of Garden City, New York.

[2]

See Romano v. Steelcase Inc. , 30 Misc.3d 426, 430 [N.Y. Sup. Ct., Suffolk County 2010]

[3]

(Id).

[4]

See also Johnson v. Ingalls , 95 A.D.3d 1398, 1400 [3d Dept. 2012] (finding that plaintiff’s Facebook photographs had “probative value” regarding her alleged injuries sustained from a moving vehicle and were not unduly prejudicial)

[5]

35 Misc.3d 1209(A) [N.Y. Sup. Ct., Richmond County 2012]

[6]

2011 WL 7560647 [N.D.N.Y. 2011]

[7]

31 Misc.3d 1211(A) [N.Y. Sup. Ct., Richmond County 2011]

[8]

See In re Air Crash Near Clarence Center, New York, 2011 WL 6370189, 6 (W.D.N.Y. 2011]

[9]

88 A.D.3d 617, 618 [1st Dept. 2011]

[10]

(Id.)See also Loporcaro v. City of New York , 35 Misc.3d 1209(A) [N.Y. Sup. Ct., Richmond County 2012] (stating that notwithstanding their privacy settings, Facebook users basically consent to the possibility that their personal information might be shared with others because there is no guarantee that their postings will not be disseminated to other members of the public).

[11]

78 A.D.3d 1524, 1525 [4th Dept. 2010]