Privacy of Social Media in Litigation

-- By LuChen - 18 Jul 2015

Introduction

Social media has never been regarded as a guardian of privacy, and those who share information on it can hardly expect such information to remain secret. But the non-private nature of social media is illustrated particularly well by the discovery process in litigation. Information distributed via social media has been repeatedly labeled as properly obtained evidence, and the casual dredges of status updates and location check-ins are starkly held, by law, to lack the protection of privacy.

Certainly, public portions of a social networking site cannot be arbitrarily shielded by any expectation of privacy. For example, a defendant who claimed to be speeding only to avoid a reckless driver had her testimony contradicted by a very recent MySpace? entry, where she stated, "If you find me on the freeway and you can keep up I have a really bad habit of racing random people. People v. Franco, 2009 WL 3165840 (Cal. App. Ct. Oct. 5, 2009). See alsoRomano v. Steelcase Inc., 907 N.Y.S. 2d 650 (Sup Ct. Suffolk Cnty. 2010) (noting that social networking sites do not guarantee complete privacy, and that the nature of public posts is to make them available to anyone with a computer). But what about privacy settings, and posts or messages that are not viewable by the general public? Can there be a reasonable expectation of privacy - however minimal - there?

Accessing a client's network

Restricting a post to a certain network, such as to only the community that one is "friends" with on Facebook, does not necessarily or is even likely to confer the expectation of privacy. An attorney may access his or her client's social media account, provided the client is willing to part with username and password credentials, and perform research through this access; this behavior is ethical as long as the attorney is only "passively browsing" available information and not actively using the client's social media account to interact with others. 28 Santa Clara Computer & High Tech. L.J. 31, 64–65 (2011). Nor is an attorney limited to browsing only the client's information, through this access. According to the New York State Bar Ethics Committee, an attorney may also view the social networking pages of a third party, to aid discovery, as long as the lawyer does not "friend" that third party or direct a person to do so. NYSBA Ethics Opinion 843 (2010). Information available to the network as a whole is considered ethical to peruse, and therefore would appear to lack expectations of privacy - such information may be easily discovered and marched through a courtroom.

Subpoena

Fishing for information through a client's account may already be intrusive enough for some, but attorneys can go a step further and subpoena evidence altogether. Courts appear to favor such evidence particlarly in a personal injury case, which often focuses on a plaintiff's loss of enjoyment of life and therefore lends itself to relevant fact-checking from social media. For example, a plaintiff who claimed personal injuries from a slip-and-fall at Target was nonetheless seen in a number of Facebook photos carrying heavy items, which contradicted her testimony about her physical condition; the court ordered the plaintiff to produce all Facebook photographs depicting her from two years before the incident to the present date. Nucci v. Target Corp., 2015 WL 71726 (Fla. Dist. Ct. App. Jan. 7, 2015) (holding that "there is no better portrayal of what an individual’s life was like than those photographs the individual has chosen to share through social media"). It did not matter that the plaintiff's Facebook account was set to "private." Similarly, the court allowed evidence of a plaintiff's online status updates and photographs (restricted to her network of friends), showcasing her active lifestyle, during days in which she claimed to be confined to her bed. Romano v. Steelcase Inc.

Lack of compliance

It may be tempting for some litigants to guard the information they consider private, rather than surrender them to the opposing party - and to the court's scrutiny. Lack of compliance is not generally successful, however. One plaintiff attempted to stonewall discovery by claiming he lacked the capacity to download his data from Facebook. In re White Tail Oilfield Services, L.L.C., 2012 WL 4857777 (E.D. La. Oct. 11, 2012). In response, the defendant successfully subpoenaed Facebook, received the plaintiff's login credentials, and obtained a court order for the plaintiff's exported data (which logged deleted data) to be forwarded. Evidently, once information is entered into a social networking site, not even the pretense of privacy lingers if that information ever becomes relevant in a litigation proceeding.

Indeed, attempting to suppress incriminating online photos is not only ineffective but detrimental. When a plaintiff deleted sixteen incriminating pictures of himself from his Facebook page, the court found for spoliation, referred the plaintiff to the attorney general for perjury, and reduced awarded damages from $6 million to $2 million. Lester v. Allied Concrete Co., Case No. CL08-150 and CL09-223, slip ops. (Cir. Ct. Va. Sept. 1, 2011 and Oct. 21, 2011) rev’d in part by Allied Concrete Co. v. Lester, 736 S.E. 2d 699 (Va. 2013)