Privacy & Information Security Law Blog

As reported in Hunton & Williams' Employment & Labor Perspectives blog:

A recent New York state trial court decision, Romano v. Steelcase Inc., et al., is representative of a recent trend of parties seeking, and courts permitting, discovery of information on social networking sites such as Facebook and MySpace.  Rejecting the plaintiff’s privacy concerns, the Romano court held that such information is discoverable because the plaintiff’s damages are at issue.  The court ordered the release of the plaintiff’s postings, pictures and other information on the social networking sites.

The Romano decision falls in line with a handful of other cases that have addressed this issue, including Ledbetter v. Wal-Mart Stores, Inc. (D. Colo. 2009), Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. 2007) and Beye v. Horizon Blue Cross Blue Shield (D. N.J. 2006).  As in Romano, each of these courts held that information posted on social networking sites is, at least in part, discoverable.

In Romano, the plaintiff filed suit against the manufacturer and distributor of her office chair after she allegedly fell off the chair.  The plaintiff alleged that she sustained “permanent injuries” from the fall and, as a result, was generally confined to her home.

In discovery, the defendants sought information and pictures posted to plaintiff’s Facebook and MySpace accounts.  Defendants alleged that plaintiff had posted pictures of herself “smiling happily … outside the confines of her home,” which was contrary to her claim that she was confined to her home.

The court agreed with the defendants.  Citing a strong public policy in favor of disclosure in pre-trial discovery, the court held that “[p]laintiffs who place their physical condition in controversy, may not shield from disclosure material which is necessary to the defense of the action.”

The court rejected plaintiff’s argument that the information should be protected on privacy grounds.  The court reasoned that, when creating Facebook and MySpace accounts, plaintiff knew that her information would be available to the public.  Thus, the court reasoned, she had no reasonable expectation of privacy.

The Romano case teaches that not only plaintiffs, but executives, managers and supervisors should be mindful about the content that they post on social networking sites.  Although recent decisions have been favorable for defense attorneys seeking information about plaintiffs, it is conceivable that this decision could be used against employers to seek social networking data posted by decision-makers.  A manager’s posting—“Glad we got rid of that complainer!”—would likely be an employer’s worst nightmare in a retaliation case.

With more than 400 million users, Facebook and MySpace are potential gold mines of information.  Each month, more than three billion photos and 180 billion posts are uploaded to Facebook.  Savvy lawyers are just starting to mine this valuable source of information.

Lawyers who use social networking sites as an informal discovery tool should be mindful of the ethical dilemmas.  The Philadelphia Bar Association recently issued an ethics opinion stating that it is unethical for an attorney to use a third-party to “friend” an individual, so that the lawyer can gain access to information on that individual’s page.  The opinion cited state ethics rules prohibiting lawyers from engaging in “dishonesty, fraud, deceit or misrepresentation.”