You May Not “Like” This Title: Everything Stored On Facebook Is Discoverable

ABSTRACT: Facebook has revolutionized the way that people communicate and do business by providing an open and connected environment for individuals and businesses alike. This openness has largely contributed to both its popularity and success. However, enjoying the openness of this revolutionary platform may come at an unexpected cost, especially for those who do not understand how the website’s content may be used as evidence in a lawsuit. Darren Heitner demonstrates how content published on a person’s Facebook account may be discoverable for the purposes of litigation, even when the information sought is unavailable through Facebook’s privacy settings.
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By Darren A. Heitner*

On its own Fan Page, Facebook describes itself as a service that gives “people the power to share and make the world more open and connected.”[FN1]People over the age of twelve, but not too old to understand how to use a computer keyboard, are able to sign up for a Facebook account and immediately share content and information with the world.  Facebook users may upload photos and videos, update their statuses, share links, create events and groups, make comments, write notes, write messages on their own or others’ “Walls,” and send private messages to other users (all of which will hereinafter be referred to as “Published Facebook Content”).  Facebook delivers on its promise to permit sharing in an online environment where people can easily get caught up on their friends’ actions and activities.  The openness is what makes Facebook extremely desirable; it also makes the platform a potential legal nightmare for those who do not understand how its content may be used as evidence in a lawsuit.

In an effort to provide its users with a sense of security, Facebook regularly updates its privacy options, including one which allows users to change the visibility of their profiles from the default “everyone” setting to something more limited or completely private.  If the “everyone” setting is enabled, any person, Facebook user or not, has access to Published Facebook Content (other than private messages) and its association with the user who posted the information.[FN2] Facebook users have the ability to block others from seeing their contact information, personal information, gender and birth date, and Published Facebook Content.[FN3] However, nestled into Facebook’s Privacy Policy in the section titled, “How We Share Information” is a paragraph that begins with, “To respond to legal requests and prevent harm.”[FN4] The paragraph states the following:

We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities.[FN5]

 

Any privacy granted to a Facebook user is only temporary, as Facebook, at any point in time and at its complete discretion, may invoke the aforementioned paragraph and disclose Published Facebook Content to, not only a court of law, but also a private company, attorney, or other governmental entity.  Even if Facebook attempts to protect a user’s privacy rights, a court may deem that the Published Facebook Content is discoverable.  While there is a deep concern regarding Facebook’s apparent willingness to share Published Facebook Content with companies, lawyers, courts and other government entities, this discussion will focus exclusively on a court’s effort to require Facebook to produce information.

I.          Discovery Background

Under the Federal Rules of Civil Procedure (FRCP) for the United States District Courts, a party may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, and the court may order discovery of any matter relevant to the subject matter involved in the action.[FN6] The responding party may claim that the information being requested is privileged, and thus refuse to submit the information.[FN7]Alternatively, a party may move for a protective order to guard against annoyance, embarrassment, oppression, or undue burden or expense.[FN8] In lieu of modern civil procedure contemplating liberal disclosure rules for discovery requests, “discovery is not unbridled and not unlimited,” and individuals deserve to have their privacy protected.[FN9] While not all states have adopted rules of civil procedure that match or even closely resemble the FRCP, many states have discovery procedures that are based on the federal system.

II.        McCann v. Harleysville Insurance

The Supreme Court, Appellate Division, Fourth Department of New York addressed the protection of a Facebook user’s Published Facebook Content in a case involving a driver injured in an automobile accident.[FN10]> The Defendant, Harleysville Insurance Company of New York, was not convinced that the Plaintiff, Kara McCann, had sustained serious injuries, and requested production of photographs from McCann’s Facebook account as a means of verification.[FN11] The trial court denied Harleysville Insurance’s motion to compel discovery based on the motion’s being overly broad and the apparent lack of proof regarding the relevancy of the Facebook photos.[FN12] The Appellate Court affirmed the trial court’s holding.[FN13]

The decision reveals that parties do not have carte blanche in discovery requests concerning Published Facebook Content.  If a party wishes to require a Facebook user to produce Published Facebook Content, the party must be specific in its demand and clearly identify the relevancy of producing such information.  The Court stated that Harleysville Insurance “essentially sought permission to conduct a ‘fishing expedition’ into plaintiff’s Facebook account based on the mere hope of finding relevant evidence.”[FN14] With a clear showing of relevance by Harleysville Insurance, however, McCann might not have escaped the production of her Facebook photographs, whether she made them available to all through the “everyone” setting or restricted their exposure to a limited group of people.

III. Romano v. Steelcase Inc.

In another New York case, the Court showed what might happen when a discovery request involving Published Facebook Content is relevant and specific.  A party may have to produce requested Published Facebook Content, even though it was originally marked as private on the social network.

In Romano v. Steelcase Inc., Judge Spinner held that, 1) private information sought from Plaintiff Kathleen Romano’s Facebook account was material and necessary for Defendant Steelcase’s defense; 2) Romano did not have a reasonable expectation of privacy in information published on Facebook; and 3) Steelcase’s need for access to Romano’s private information on Facebook outweighed any privacy concerns voiced by Romano.[FN15] Whereas the court in McCann refused to allow the defendant to access a single photograph that the plaintiff posted on her Facebook page, in the instant case, Steelcase was able to reach Romano’s current and historical Facebook pages and accounts, including deleted pages.[FN16] The key difference is that this Court found that the information request was material and necessary, which is a standard that is to be interpreted liberally, requiring disclosure of “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.”[FN17]

Romano claimed that she suffered serious injuries which affected her enjoyment of life based, at least partially, on her lack of capacity to participate in certain activities.[FN18] If true, those facts could influence the Court to sympathize with Romano, likely affecting the outcome of the case.  Viewing only the public sections of Romano’s Facebook and MySpace pages, Steelcase discerned that Romano’s active lifestyle had not been affected by any injury.[FN19] Romano claimed that she was confined to her house; public Facebook pictures displayed Romano outside of her home, smiling happily as if she enjoyed her life as much as she had in her pre-injury state.[FN20] With this type of information readily available for the general public to view, what could Steelcase find in the private sections of Romano’s Facebook profile?

The Court did not limit Steelcase’s discovery to Romano’s public Published Facebook Content.[FN21] Instead, the Court stated that preventing access to Romano’s private postings would be “in direct contravention to the liberal disclosure policy in New York State.”[FN22] As stated supra, liberal disclosure rules for discovery requests exist on the federal level and within many other states’ disclosure policies.

The severity of the claimed injury and the amount of damages requested might play a role in whether a court compels the discovery of private Published Facebook Content as well.  Additionally, private Published Facebook Content may be easier for a defendant to compel in a personal injury case than one involving a different cause of action.  The Court in Romano quoted a Canadian court, which also permitted the discovery of private Published Facebook Content in a personal injury scenario.  The quoted portion is as follows,

To permit a party claiming very substantial damages for loss of enjoyment of life to hide   behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.[FN23]

In response to the Canadian case, the Court held, “To deny Defendant an opportunity to access these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”[FN24] Not only would a party aiming to compel discovery of private Published Facebook Content have a better chance of success in a loss of enjoyment of life case, but they will likely also have a better chance of proving that the opposing party is hiding relevant information in bad faith.

Another noteworthy part of the decision is the Court’s rejection of Romano’s Fourth Amendment’s right to privacy argument.  The Court’s reasoning was that Facebook does not guarantee complete privacy and, thus, Romano had no legitimate reasonable expectation of privacy.[FN25] In the Court’s dicta, the following quote was referenced, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”[FN26]

IV.       Conclusion

Facebook users may have a false sense of security regarding their Published Facebook Content.  No matter what types of privacy settings a user puts in place, a court may determine that the Published Facebook Content is discoverable by a party to a lawsuit.  For a party attempting to learn more about an adverse party, this could be a pleasant surprise; for a party attempting to hide something that was once posted on his Facebook Page without any thought, it could be the piece of evidence that tears apart his case.

 


* Darren Heitner is an associate in the Fort Lauderdale, Florida law firm of Koch Parafinczuk & Wolf, P.A., where he practices all kinds of litigation, including an emphasis on intellectual property law.  He is the Founder and Chief Executive Officer of Dynasty Athlete Representation, a full service sports agency, and is the Founder and Chief Editor of SportsAgentBlog.com and ChangeLegal.com.  Darren graduated from the University of Florida and the University of Florida Levin College of Law.

[FN1] Facebook, http://www.facebook.com/facebook (last visited Dec. 31, 2010).

[FN2] Statement of Rights and Responsibilities, Facebook, http://www.facebook.com/terms.php (last visited Dec. 31, 2010).

[FN3] Facebook’s Privacy Policy, Facebook, http://www.facebook.com/policy.php (last visited Dec. 31, 2010).

[FN4] Facebook, supra note 4.

[FN5] Facebook, supra note 4 (emphasis added).

[FN6] Fed. R. Civ. P. 26(b)(1).

[FN7] Fed. R. Civ. P. 26(b)(5)(A).

[FN8] Fed. R. Civ. P. 26(c)(1).

[FN9] Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 607 (D.D.C. 1969).

[FN10] See McCann v. Harleysville Ins. Co. of N.Y., 912 N.Y.S.2d 614, 615 (N.Y. App. Div. 2010)

[FN11] Id.

[FN12] Id.

[FN13] Id.

[FN14] Id.

[FN15] Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 654-657 (N.Y. Sup. Ct. 2010).

[FN16] Id. at 657.

[FN17] Id. at 652.

[FN18] Id. at 653.

[FN19] See id. at 653.

[FN20] Id. at 654.

[FN21] See id. at 655.

[FN22] Id. at 655.

[FN23] Leduc v. Roman (2009), 308 D.L.R. 4th 353 (Can. Ont. Sup. Ct. J.).

[FN24] Steelcase, 907 N.Y.S.2d at 655.

[FN25] Id. at 656.

[FN26] Dana L. Flemming & Joseph M. Herlihy, What Happens When the College Rumor Mill Goes Online?, 53 B.B.J. 16, 16 (2009).

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