Remember how everyone used say, “Don’t post anything on Facebook you wouldn’t want your boss to see. But if you do, just make sure you set your privacy settings so that your boss can’t see.”
Well, things have changed. Now, when companies enter workman’s compensation or personal injury litigation, courts will sometimes order discovery on password-protected Facebook information.
On Thursday, a New York appeals court ruled that a company could not see the plaintiff’s protected data, but not simply because it was private. Let’s see what happened…
Russell Patterson brought a personal injury lawsuit against Turner Construction Company (it’s unclear what kind of injury, specifically). On October 27, the New York Appellate Division (First Department) reversed the state supreme court in Patterson v. Turner Construction Co.. The court said the company could not have access to all of Patterson’s Facebook files, because the request wasn’t specific enough:
[W]e reverse and remand for a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.
InsideCounsel wrote that the case highlights increasing limitations on the use of social media in litigation. But to me it seems the courts are simply having to work out more specific ways to deal with the increasing presence of social media in employment-related disputes. Facebook certainly won’t be used less in litigation anytime soon.
During most discovery proceedings, fishing expeditions waste everyone’s time. Litigants need relevant information, whether it’s in email or on Facebook. Attorneys can’t just say, “Give us all your Facebook files!” There’s got to be a reason to go digging.
Even though the InsideCounsel and Reuters articles focused on the fact that the court didn’t allow access to some of Patterson’s information, I find it more surprising that the password-protected nature of the information is even being considered. It’s a pretty direct about-face from just a few years ago:
The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access… just as relevant matter from a personal diary is discoverable.
The practice might not be common yet, but Reuters cites at least one other analogous case:
In a 2010 case in state Supreme Court in Suffolk County, a woman who claimed to be bedridden after falling out of a chair was spotted in pictures posted on Facebook standing smiling in front of her house. A judge ordered her to provide the defense with access to the private portions of her Facebook and MySpace accounts.
The lesson? Privacy ain’t private. As if you didn’t know that already.
Court limits access to a plaintiff’s Facebook account [InsideCounsel]
Man’s Facebook account not an open book: NY appeals court [Thomson Reuters]
Patterson v. Turner Contruction Co. [Oct. 27 ruling]
Christopher Danzig is a writer in Oakland, California. He previously covered legal technology for InsideCounsel magazine. Follow Chris on Twitter @chrisdanzig or email him at firstname.lastname@example.org. You can read more of his work at chrisdanzig.com.