Emily K. Stitelman of the Law Office of Emily K. Stitelman
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Those of us who have seen the movie "The Social Network" recall the scene when the protagonist and Facebook founder, Mark Zuckerberg, is angry at his former girlfriend, Erica Albright. Without much thought he posts not-so-nice information about her on the internet. When the posts are widely read, Albright confronts Zukerberg, "It didn't stop you from writing it. As if every thought that tumbles through your head was so clever it would be a crime for it not to be shared."[FOOTNOTE 1] And so the "status update" was born.
Facebook alone has more than 800 million active users. [FOOTNOTE 2] Those users share more than a billion pieces of content ("likes," comments status updates, photos, etc.) each day.[FOOTNOTE 3] Many users do so without thought, planning, or consideration as to the impact of content they are sharing. It is no wonder that all of this content is becoming an important source of discovery in litigations, including personal injury and matrimonial actions.[FOOTNOTE 4] But what really happens when a status update, photo, tweet, or other post on a social networking site is relevant to an action? And how can attorneys ethically access information on social networking sites in the course of discovery?
NO RIGHT TO PRIVACY IN NEW YORK
Though not the case in all states,[FOOTNOTE 5] under New York State law, there is no right to privacy for information contained on social networking websites. In Romano v. Steelcase, Inc., plaintiff filed a personal injury action against defendant alleging that defendant's negligence caused her to sustain injuries that prevented her from participating in certain activities and affected her enjoyment of life. Defendant moved the Court for an order granting defendant access to all of plaintiff's current and past Facebook and MySpace pages. Defendant argued that public portions of plaintiff's Facebook and MySpace pages contained information showing that plaintiff led an active lifestyle, traveling frequently to other states. Defendant contended, therefore, that the private portions of plaintiff's current and past Facebook and MySpace pages were relevant to the action. The Court agreed.
Justice Jeffrey Arlen Spinner of the Supreme Court of Suffolk County wrote, "Preventing Defendant from accessing to [sic] Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy in New York State." [FOOTNOTE 6] Speaking to plaintiff's privacy concerns, Spinner held that plaintiff did not have a reasonable expectation of privacy with respect to her Facebook and MySpace pages; notwithstanding certain privacy settings that plaintiff may have used to mark some of the content as private.[FOOTNOTE 7]
While Spinner's decision in Romano sets important precedent with respect to the discoverability of content located on social networking sites, New York courts are not likely to hand over access to litigant's Facebook and MySpace accounts without a showing of potential relevance. For example, in McCann v. Harleysville Insurance Co. of New York, another personal injury action,the Appellate Division of the Supreme Court of New York, 4th Department rejected defendant's request for access to plaintiff's Facebook account finding that defendant had not properly shown that the information contained therein would be relevant to the action.[FOOTNOTE 8]
ETHICALLY OBTAINING INFORMATION FROM SOCIAL NETWORKING SITES
Although there is no right to privacy with respect to content located on social networking sites, like Facebook and MySpace, attorneys must tread carefully when attempting to access information designated as "private" on these sites. Both the New York City Bar and the New York State Bar Association have opined that lawyers may not use false or deceptive information to "friend" a party or non-party (or cause someone else to friend a party or non-party) in order to obtain non-public information about that person.[FOOTNOTE 9] To do so can potentially run afoul with New York Rules of Professional Conduct 4.1(a), 5.3(c)(1), 8.4(a) and (c).[FOOTNOTE 10] Rather, lawyers should use "formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual's social networking page."[FOOTNOTE 11]
In order to ensure that all relevant information is obtained, lawyers should request information from both the social network provider and from the user. With respect to disclosure demands to the social network user, litigants should request the following: "(1) the social networks subscribed to by the user, (2) the duration of each subscription, (3) all information and documents responsive to the discovery demands, and (4) applicable usernames and passwords."[FOOTNOTE 12] Based on the social network user's responses (or lack thereof), attorneys can frame their subpoenas to the social network provider. On the flip side, lawyers and their clients would be well advised to include social networking sites as part of their litigation holds to ensure that potentially relevant information contained on these sites are preserved for litigation. Facebook recently made preserving and producing user profile pages, posts, and status updates easier. A user can now download an entire copy of their profile, including wall posts, photos, videos, notes, and comments.[FOOTNOTE 13] Attorneys can ask their adversaries to preserve and produce Facebook information in this manner, making for an effective, efficient, and ethical production.
Finally, Albright's warning to Zuckerberg should be a lesson to us all, "The internet's not written in pencil ... it's written in ink."[FOOTNOTE 14] The best way to prevent content on social networking sites from being used in litigation is not to post it in the first place, or, if you must, think very carefully before posting.
::::FOOTNOTES::::
FN1 Internet Movie Database, "The Social Network" (2010), at http://www.imdb.com/title/tt1285016/quotes.
FN2 Facebook, Statistics, at https://www.facebook.com/press/info.php?statistics.
FN3 Id.
FN4 See, e.g., Romano v. Steelcase, Inc., 30 Misc. 3d 427, 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk Co. 2010) (Facebook and MySpace information sought in personal injury action). See also, Leanne Italie, Facebook is divorce lawyers' new best friend, at http://www.msnbc.msn.com/id/37986320/ns/technology_and_science-tech_and_gadgets/.
FN5 Crispin v. Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) (California court quashed subpoenas to social network providers holding that subpoenas sought private information, prohibited from disclosure under Stored Communications Act of 1986).
FN6 Romano v. Steelcase, Inc., 30 Misc. 3d at 430.
FN7 Id. at 432-35
FN8 McCann v. Harleysville Insurance Co. of New York, 78 A.D.3d 1524 (4th Dep’t 2010); see also, Progressive Ins. V. Herschberg, 2011 N.Y. Slip Op 31288(U) (N.Y. Sup. Ct., Nassau Co. 2011) (denying unlimited access to Facebook account after a finding that there was no showing that "material sought is necessary and not cumulative."); but see, B.M. v. D.M., 2011 N.Y. Slip Op 50570(U) (N.Y. Sup. Ct., Rich. Co. 2011) (finding wife’s Facebook posts regarding regular dancing activities to be relevant to wife’s claim that she is unable to work).
FN9 See, The Ass’n. of the Bar of the City of New York Comm. on Prof’l Ethics, Formal Op. 2010-2 (2010). See also, N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Opinion 843 (2010).
FN10 Id.
FN11 The Ass’n. of the Bar of the City of New York Comm. on Prof’l Ethics, Formal Op. 2010-2 (2010).
FN12 Loryn P. Riggiola and Grace A. Brown, E-Discovery Takes A Turn – Charting The Course To Discovery From Social Networks, The National Law Review (2011), at http://www.natlawreview.com/article/e-discovery-takes-turn-charting-course-to-discovery-social-networks.
FN13 Facebook, Download Your Information, at https://www.facebook.com/help/?page=18830.
FN14 Internet Movie Database, "The Social Network" (2010), at http://www.imdb.com/title/tt1285016/quotes.
Emily K. Stitelman, founder and principal of the Law Office of Emily K. Stitelman, focuses her practice on e-discovery consulting.
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