Privacy v. Discovery: The Case for Discovery (Part II)

    July 24, 2012

     In part four of Privacy v. Discovery: The Battle for Social Media Information, I continue my analysis of the line of cases holding that social media information behind privacy settings is discoverable:

    In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk County 2010), court held that a plaintiff lacked a reasonable expectation of privacy for information published on social media sites.

    In Romano the plaintiff sued for personal injuries she allegedly sustained in an accident, placing her physical condition in controversy. According to the opinion, she specifically claimed she could no longer participate in certain activities as a result of the incident.

    During her deposition, the public portions of her Facebook and MySpace profiles revealed that she still participated in these activities. As a result, the defendant requested the plaintiff execute written authorizations so that it could obtain full access to her social media profiles. The plaintiff refused to provide the requested authorizations on account of her “right to privacy.”

    Noting that information on the public portions of the plaintiff’s profiles contradicted her claims, the court determined that the private portions of her profile likely contained additional material relevant to the defense against the action. To prevent the defendant from accessing the plaintiff’s private postings would condone her attempt to hide relevant information behind self-regulating privacy settings, the court said. Therefore, it granted the defendant access to the plaintiff’s “private” Facebook and MySpace accounts, finding this would not violate her right to privacy.

    Similar to the court in Simply Storage, the Romano court found that the plaintiff could not have a legitimate expectation of privacy when she voluntarily shared the content on Facebook. Accordingly, the court said no one has a “reasonable expectation of privacy” by choosing to post on their Facebook or MySpace profiles for the world to see.

    Furthermore, Facebook and MySpace’s privacy policy disclosures vitiated any legitimate expectation of privacy, the court said. Specifically, each site warned users that the information posted on their profiles, comments or streams might become publicly available.

    When the plaintiff created her Facebook and MySpace accounts, she consented to sharing her personal information with others, notwithstanding her privacy settings, the court said. Accordingly, the court rejected the plaintiff’s privacy objections as “wishful thinking” and ordered her to execute an authorization permitting the defendant to “gain access to plaintiff’s Facebook and MySpace records, including any records previously deleted or archived.”

    In essence, Simply Storage (discussed in yesterday’s post) and Romano hold that merely “locking” a profile with privacy features does not prevent it from being discoverable. These courts hold that once a person voluntarily publishes information on a social media site, he or she cannot have a “reasonable” expectation of privacy in such content.  Furthermore, any “subjective” expectation of privacy would be lost upon transmission to “friends” and otherwise nullified by the social media site’s privacy disclosures. Thus, under this line of cases, even “private” social media content is discoverable. 

    In tomorrow’s post, I will begin to make “The Case for Privacy,” by analyzing a line of cases holding that certain social media information hidden from the general public through privacy settings is shielded from discovery under federal law and by application of traditional discovery standards. A complete analysis of this this topic is discussed in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. 

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