Posted on March 31, 2011 in Personal Injury
Anyone bringing a personal injury lawsuit must be aware that any information posted on social networking sites like Facebook, MySpace and LinkedIn could be disclosed in the lawsuit. Defendants to personal injury lawsuits are increasingly asking plaintiffs for access to this information as part of the lawsuit. The law regarding the discoverability of this information is still catching up and is not well-defined, particularly in New York State. However, the few courts that have addressed the issue have either permitted that access or have indicated that access would be permitted based on a proper showing.
Therefore, a plaintiff ought to think twice before posting anything on his or her Facebook or MySpace pages that could in any way be misconstrued or used against them in the lawsuit. In fact, a plaintiff should assume that anything that he or she posts, including comments, photos, or videos, could eventually end up being viewed by the defendant, and more importantly, by a jury deciding his or her case.
A good example of how courts have begun to treat the discoverability of this information in personal injury lawsuits is Romano v. Steelcase, 907 N.Y.S.2d 650 (Sup. Ct. Suffolk Co. Sept. 21, 2010). In Romano, plaintiff claimed that she sustained permanent injuries that prevented her from engaging in certain activities and otherwise limited her enjoyment of life. Defendant claimed that the public portions of the plaintiff’s MySpace and Facebook pages allegedly showed that she was leading an active lifestyle, including taking out of state trips, which was contrary to her claims in the lawsuit. Defendant sought access to plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information. The court granted defendant access on the grounds that there was a reasonable likelihood that the private portions of plaintiff’s pages might contain further relevant evidence, including information about her activities and her enjoyment of life. The court found that plaintiff’s right to privacy was outweighed by the defendant’s need for the information. The court was persuaded by the fact that, although both MySpace and Facebook permitted plaintiff to select certain privacy settings, neither website guaranteed complete privacy. Therefore, the court reasoned, plaintiff had no legitimate reasonable expectation of privacy in what she posted.
More recently, the New York State Appellate Division, Fourth Department, in McCann v. Harleysville Ins. Co., 2010 NY Slip Op 8181 (4th Dep’t 2010), upheld a lower court’s decision denying defendant the right to obtain a signed authorization by plaintiff that would permit defendant to access plaintiff’s Facebook account information, including photographs. The court concluded that “defendant essentially sought permission to conduct ‘a fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.” McCann, 2010 NY Slip Op 8181 at *2. However, the court further held that the lower court erred in granting plaintiff’s cross motion for a protective order and should not have limited defendant from seeking disclosure of plaintiff’s Facebook account at a future date and upon a proper showing.
Apart from whether the information is discoverable in a lawsuit is the separate issue of how an attorney can obtain access to the information. In September 2010, the New York State Bar Association’s Committee on Professional Ethics issued an opinion that addressed whether and to what extent attorneys could use social networking sites to access information about another party to a lawsuit. See NYSBA Committee of Professional Ethics, Opinion 843, found at http://www.nysba.org/AM/Template.cfm?Section=Ethics_Opinions&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm. The Committee’s opinion states that an attorney can legally search for and use against a party any information that the attorney obtains from those parts of a party’s social networking pages that are public. The attorney cannot, however, gain access to a party’s private social networking pages by either directly “friend requesting” that party, or directing a third-party to do so.
In light of these developments, plaintiffs in a personal injury action must understand that using social networking sites could adversely affect their lawsuit. They also must understand that although there are certain privacy settings on Facebook and MySpace, these settings do not protect plaintiffs from having to disclose in the lawsuit the relevant information that they post.
What you should do if you are a plaintiff in a lawsuit and have a social networking site:
1) Tell you attorney that you have a social networking page.
2) Refrain from posting anything about your lawsuit.
3) Refrain from posting anything about your injuries.
4) Do not accept any “friend” invitations from anyone you do not know.
5) Regularly check your “friends” list and remove anyone who you do not know.
6) Make sure your privacy settings are set to prevent unknown and unwanted viewers from seeing the content of your profile.
7) Do not post photographs that show you engaging in any activities, from either before or after the incident that gave rise to the lawsuit, as such photos could be misconstrued by the defendant and exploited in a way that could hurt your lawsuit.
8) If you already posted content to your social networking site that could be potentially harmful to your lawsuit, tell your attorney about that content in order to minimize its potential impact in your case.
Kathryn K. Lee, an associate at Faraci Lange, LLP in Rochester, NY, describes how using social networking sites such as Facebook or LinkedIn could adversely affect a personal injury lawsuit.