The proliferation of social media has opened up new avenues for defendants to collect evidence about parties filing claims against them. This has left courts to determine the proper balance between maintaining a plaintiff’s right of privacy and a defendant’s right to gather all relevant evidence needed to build its case. 

In the 2010 case Romano v. Steelcase Inc., a plaintiff in a personal injury suit claimed that an accident caused by the defendant resulted in a loss of her enjoyment of life. Romano v. Steelcase Inc., 2010 NY Slip Op 20388, 2 (N.Y. Sup. Ct. 2010). While assembling its evidence, the defendant reviewed the plaintiff’s Facebook and MySpace pages and argued that it found material that would suggest the plaintiff lived an active lifestyle after the accident. After failing to obtain answers from the plaintiff about the sites during deposition, the defendant moved for an order that would grant them access to current and historical pages and information from the plaintiff’s social networking accounts.

The defendant argued that the material it sought to obtain would conflict with the plaintiff’s claims of injury and loss of enjoyment of life. Under New York law, there must be full disclosure of any non-privileged matter that is material and necessary to the defense or prosecution of an action. CPLR 3101. Trial courts are generally granted broad discretion in supervising discovery and determining what matters are “material and necessary.” Romano at 2. Additionally, in an action seeking damages for personal injuries, discovery will usually be permitted with respect to materials relevant to both the issue of damages as well as the plaintiff’s injury. Walker v. City of New York, 205 A.D.2d 755 (N.Y. App. Div. 2d Dep’t 1994).

The Court determined that when the plaintiff created her Facebook and MySpace accounts, she consented to having her personal information shared with others and, in doing so, diminished her expectation of privacy. The Court held “that it is the very nature and purpose of these social networking sites” to have information shared and open to the public and “[s]ince Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy.” Id. at 7.

The Court determined that Steelcase’s ability to defend itself in the action strongly relied on its access to Romano’s social network sites. “The materials including photographs contained on these sites may be relevant to the issue of damages and may disprove Plaintiff’s claims,” the Court held. Id. “Without access to these sites, Defendant will be at a distinct disadvantage in defending this action.” Id. Consequently, the Court found that Steelcase’s need outweighed any of Romano’s privacy concerns and granted the defendant’s order.

New Your Courts have denied similar requests in other cases by defendants seeking access to plaintiffs’ social networking information, holding that the requests were overly broad. See McCann v. Harleysville Ins. Co., 2010 NY Slip Op 8181 (N.Y. App. Div. 4th Dep’t 2010), Adams v. Pecile, 2011 NY Slip Op 3108 (N.Y. App. Div. 1st Dep’t 2011). The decisions suggest that parties that seek access to such material should be required to make a prima facie showing that the information is relevant to the case and particularly important to their defense.

This is an interesting decision because it begins to give an idea of how courts will balance two significant but competing interests. As individuals begin to include more information about themselves online, this balance will likely be one that courts are faced with quite often. The decisions by various New York Courts suggest that, while they are likely to infringe on a plaintiff’s right of privacy in order to let a defendant build a fair case, defense teams will still need to be able to make a strong demonstration of why such information is important to the discovery process.


© 2011 Nissenbaum Law Group, LLC

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