Facebook: To Post Or Not To Post?
Litigants need to be aware that no material posted on Facebook is truly private. If you are involved in a lawsuit one needs to be sure not to post anything on Facebook, or any other web site, which could have an adverse effect on one's pending litigation. The law on this issue is still developing and judges will decide these issues on a case by case basis.
General rule of thumb: If you have to think about whether a Facebook or other posting will possibly hurt or affect your claim. Don't Post It.
Facebook, MySpace, Twitter, LinkedIn. Who are you following? Did you see what he tweeted? How many "friends" do you have? Did you see that photo album that she posted? How entertaining was that link I posted on your wall? These types of questions seem common place around the standard workplace water cooler conversation. However, persons who bring lawsuits, plaintiffs, need to take heed about what they post not only regarding information about their pending litigation but also information that may represent their personal character. Privacy settings may not be as private as Plaintiffs would hope or believe. Issues involving information exchanged on social networks have begun to arise in a variety of different litigation matters. Plaintiffs need to be careful about what information they share, with whom they share it, and that it indeed is not adverse to their pending lawsuit.
Let us take a closer look at the most popular online social networking website, Facebook. Facebook is an internet-based social networking site that allows users to connect and exchange information both privately and publicly. At present, Facebook boasts over 500 Million users, who can all upload an unlimited number of photos, share links and videos and learn more about the people they wish to include in their group.
Facebook allows users to create a personal profile page to permit only selected users to share with their "friends" personal and educational background information, pictures, videos, blogs, etc. Facebook allows each user to post comments and exchange information on a virtual bulletin board, or "wall," which becomes a forum for anyone given access to the wall. Facebook also provides various means for one user to communicate privately with another.
New York Law requires parties to disclose all matters that are material and necessary in the prosecution or defense of an action. If the matter is in Federal Court, The Federal Rules of Civil Procedure also limit discoverable information to non-privileged material that is relevant to a party's claim or defense. Rule 34(a) provides that "electronically stored information" is included within the breadth of Rule 26.
In a recent New York state court decision in a personal injury action, Romano v. Steelcase, the plaintiff had claimed that she had permanent injuries and was largely confined to her house and bed. However, her publicly accessible Facebook page showed her "smiling happily in a photograph outside the confines of her home" after the date of the accident. Given these facts, the motion court applied New York's liberal disclosure standard and allowed discovery of the plaintiff's private postings, finding them relevant on the issue of the extent of plaintiff's injuries.
However, parties in litigation are not entitled to complete, full access to a user's account without establishing relevancy of a search. In a New York case, McCann v. Harleysville Ins. Co. of N.Y., the Appellate Division held that the defendant was not entitled to access the plaintiff's private Facebook posting, since the defendant "failed to establish a factual predicate with respect to the relevancy of the evidence" The defendant "essentially sought permission to conduct "a fishing expedition" into plaintiff's Facebook account based on the mere hope of finding relevant evidence.
In addition, a plaintiff who posts material privately undoubtedly has a reasonable expectation of privacy in that data. So ruled the court in Crispin v. Christian Audigier Inc., which recognized a stronger privacy interest in private webmail and messaging, than a more public "wall" posting. Id.
A Nevada court, in Mackelprang v. Fidelity Nat'l Title Agency of Nevada Inc., limited discovery of a plaintiff's private messages which had been exchanged with third parties regarding her sexual harassment or emotional distress allegations. The court declined to recognize a sufficiently relevant connection between a plaintiff's non-work related sexual messaging activity on a MySpace page and the allegation that she was subjected to unwelcome and offensive sexual advancements in the workplace since the account was setup outside the relevant time period of her employment.
In its Formal Opinion 2010-2, entitled "Obtaining Evidence From Social Networking Websites," the New York City Bar's Committee on Professional Ethics opined that a lawyer may not by herself or through a third-party, including a client, attempt to gain access to a social networking site under false pretenses. The lawyer should pursue formal discovery procedure. The committee classified such lawyer's conduct as deceptive and contrary to New York Rules of Professional Conduct, 4.1 and 8.4 (c).
A subsequent committee went further in September 2010, stating in Opinion 843 that a lawyer can look at public pages on a social media site, but cannot make use of pages that are available only to "friends," as opposed to the general public without obtaining the court's consent.
 NY Civ. Pr. R. ∫ 3101.
 Romano v. Steelcase, 30 Misc.3d 426, 907 N.Y.S.2d 650 (S. Ct. Suffolk County, Sept. 21, 2010).
McCann v. Harleysville Ins. Co. of N.Y., 78 A.D.3d 1524, 910 N.Y.S.2d 614 (4th Dep't 2010).
 citing Crazytown Furniture v Brooklyn Union Gas Co,150 A.D.2d 420,421 (1989).
 Crispin v. Christian Audigier Inc., 2010 U.S. Dist. LEXIS 52832(C.D. Cal. May 26, 2010).
 Mackelprang v. Fidelity Nat'l Title Agency of Nevada Inc., Not Reported in F.Supp.2d, 2007 WL 119149 (D. Nev. 2007).