Social Networks Subject To Discovery

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet.

As you post communications, photos and videos on Facebook and MySpace, do you ever wonder if social networks are subject to discovery in litigation? Well, you should, as one recent court decision indicates.

In the case of Romano v. Steelcase, a New York judge ruled that defendant Steelcase was entitled in discovery to access the plaintiff's current and historical Facebook and MySpace pages and accounts, including previously deleted information, on the basis that information to be found there could prove to be inconsistent with her claims of injuries and loss of enjoyment of life. The plaintiff alleged in her lawsuit that she fell off a defective Steelcase chair, which led to permanent injuries, pain, loss of enjoyment of life, and multiple surgeries. Steelcase contended that public portions of her Facebook and MySpace pages revealed that she had an active lifestyle, including travel, and it wanted further access to her social networking information, which the plaintiff refused.

The judge agreed with Steelcase. He noted that the plaintiff's public profile page on Facebook showed her smiling happily outside of her home, which was inconsistent with her claim that she was largely confined inside her house in bed. He thus concluded that other parts of her social networking pages might contradict her claims. This may seem a bit harsh. Even someone who is bed-ridden in pain could have a photo taken of him or her outside of the home. On the other hand, that may not be a basis to refuse discovery. It could go more to the weight of the evidence, which could be explained at trial.

The judge also ruled in favor of Steelcase's discovery requests because "the primary purpose" of social networking sites "is to enable people to share information about how they lead their social lives," notwithstanding how they "self-set privacy controls" on such sites. This conclusion was buttressed for the judge by the fact that both Facebook and MySpace state explicitly on their sites that they cannot guarantee the privacy of users' posted content.

So, let there be no mistake, it certainly is possible that communications and materials posted on social networking sites can be fair game for discovery in litigation. Of course, that does not mean that judges always will grant discovery requests in this area. If the relevance of the information sought is too attenuated, then the burden, intrusion, and privacy interests involved might outweigh the probative value of the information. Nevertheless, word to the wise - think twice about what you do or say on social networking sites. Living life out loud can have consequences.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Related Resources:

• Discovery (FindLaw's LawBrain)
• New (and Possibly Billable) Uses for Facebook: Discovery Tricks (FindLaw's Greedy Associates)
• Feds Use Covert Operations on Social Network Sites (FindLaw's Blotter)