JUDGE GRANTS ACCESS TO PRIVATE SOCIAL NETWORK SITES FACEBOOK AND MYSPACE

JUDGE GRANTS ACCESS TO PRIVATE SOCIAL NETWORK SITES FACEBOOK AND MYSPACE

In Romano v. Steelcase, 2010 NY Slip Op 20388 (N.Y. Sup. Ct. September 21, 2010), the Supreme Court of Suffolk County, New York, granted a motion by the Defendant requesting access to Plaintiff's “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff placed certain information on the social networking sites which [were] believed to be inconsistent with her claims” in the lawsuit. Romano brought suit after falling off an allegedly defective desk chair while working at Stony Brook University. Claiming she sustained “serious permanent personal injuries” and had to undergo multiple surgeries, she sued the Defendant manufacturer and distributor of the chair. She alleged that she had suffered restricted motion in her neck and back, and “pain and progressive deterioration with consequential loss of enjoyment of life.”

However, the Defendant believed that Romano’s claims were contradicted by public portions of her Facebook and MySpace profiles, which “reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.” For example, Defendant argued that Romano's public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

In an effort to obtain the private information, the Defendant served Romano with a notice for discovery requesting “authorizations to obtain full access to and copies of Plaintiff's current and historical records/information on her Facebook and MySpace accounts.” After Romano refused to provide the requested information, the Defendant moved the Court to grant access to Romano’s accounts.

In opposing the motion, Romano insisted that she “possesse[d] a reasonable expectation of privacy in her home computer.” She argued that Defendant's claims were based on “speculation and conjecture” and characterized the discovery request as a “blatant attempt by defendant to intimidate and harass” her.

Facebook also opposed the Defendant’s request, saying that the manufacturer should request the communications directly from the Plaintiff rather than from the social networking site. Facebook maintained the position that producing the Plaintiff’s profile without her consent violates the federal Stored Communications Act, which bars Facebook from “producing a non-consenting subscriber's communications even when those communications are sought pursuant to a court order or subpoena.”

The Court held that precluding the Defendant from accessing Romano’s private postings on Facebook and MySpace “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone Plaintiff's attempt to hide relevant information behind self-regulated privacy settings.” The Court went further to note that, “In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.”