Discoverability of Facebook Activity

A number of courts recently have held that information posted on social networking sites is discoverable, even where the poster used privacy settings to limit the dissemination of information.  For example, in Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (N.Y. Sup. Ct. Sept. 21, 2010), the defendant in a personal injury action sought production of information contained on the plaintiff’s MySpace and Facebook pages, including archived information.  The Suffolk County Supreme Court held the information was discoverable.  The court noted that while both sites offer privacy controls, both also warn users that information on their pages and profiles may be available to others.  Furthermore, according to the court, people who use social networking sites consent to have their personal information shared, and there are minimal privacy concerns where a person voluntarily shares information with others. Id. 

The same result occurred in Largent v. Reed, No. 2009-1283 (Pa. C.P. Nov. 8, 2011), where the court found information on the plaintiff’s Facebook page was discoverable.  The court held there is no reasonable expectation of privacy for information shared on Facebook, a social networking site.  According to the court, only the “uninitiated or foolish” would believe information posted on Facebook is private. See also Pororcaro v. City of New York, No. 100406/10, 2012 WL 1231021 (N.Y. Sup. Ct. April 9, 2012) (one who voluntarily posts information on Facebook cannot claim the information is immune from discovery).

Attorneys defending certain cases (most notably, personal injury actions) are wise to request access to an opposing party’s social networking profiles--remembering, however, the sword cuts both ways.  A picture showing a personal-injury plaintiff roller skating is equal in worth to a video showing a defendant who claims to be a conscientious driver drag racing.

These cases also are a reminder to all of us with an online presence--be careful what you post!