October 5th, 2012

App Court: You Ain’t Gettin’ Those Facebook Files

Another defendant attempts to get access to a personal injury plaintiff’s Facebook and other social media accounts, and another defendant is shot down by an appellate court.

This one comes out of New York’s Appellate Division (4th Department). Kregg v. Maldonado, decided a few days ago, deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case, which I discussed two years ago. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.” But there wasn’t.

The defendants were, in essence, on a simple fishing expedition (or, perhaps, a billing expedition) hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.

March 23rd, 2012

Facebook Says “Privacy Expectations” On Its Site

Demand in personal injury suits for Facebook details are becoming more common, as I’ve posted about recently. One of the defense arguments is that there is no expectation of privacy for things posted on Facebook, regardless of the privacy settings, so the lawyers should be able to snoop.

Now, just so the record is clear, Facebook says otherwise. In a posting today on its own site, Chief Privacy Officer Erin Egan wrote that there is an expctation of privacy. The reason for her post was a recent story where employers were asking job applicants for their Facebook passwords, or to have one of their managers “friended,” so that the company could go rummaging around in the personal lives of the applicant. Sort of like asking to see someone’s email account, only much worse. She wrote that “This practice undermines the privacy expectations and the security of both the user and the user’s friends.”

Egan wrote with respect to the expectation of privacy and delving into the accounts:

This practice undermines the privacy expectations and the security of both the user and the user’s friends.

There is a clear parallel here to the litigation setting. Users write with an expectation of privacy, and friends of those users do also. So says Facebook. Should a court permit unlimited snooping, it isn’t just the litigant who has been probed by the lawyer, but all of the litigants friends.

March 14th, 2012

New Facebook Decision – Novartis Loses Again

Three weeks ago I ran a story on a New York federal court decision that denied a defendant access to a plaintiff’s Facebook account. Then, two days ago, a Florida federal court decision came out on the same topic. I was about to do a simple update of my original post.

But. While this was a different case, the defendant was the same, Novartis Pharmaceuticals. And the subject dealt with the same medical drug, Zometa, and the same medical condition, osteonecrosis of the jaw. And the law firm is the same, Hollingsworth.

The result isn’t much different either. Novartis made broad claims about wanting unfettered access to the Facebook account of the plaintiff that took the drug, hoping no doubt for a no-holds barred fishing expedition through the plaintiff’s life.

The court however, stuck to this little thing called relevance, and shot down 99% of the defendant’s fishing attempt. Defendant’s broad demands were for the plaintiff to:

(1) produce the log-in information to his Facebook account and any other social networking websites he may belong to; and

(2) execute a waiver allowing Defendant to directly obtain these materials held in the corresponding databases;

or, in the alternative, directing Plaintiff to produce all photographs added to any social networking website that depict Plaintiff from the date of the development of his alleged injury, regardless of who posted the photograph.

In Childs v Novartis, Magistrate Judge Joel Toomey wrote that Novartis was clearly overreaching, and said that Hollingsworth’s demand was not “reasonably calculated to lead to the discovery of admissible evidence” and that this was “the proverbial fishing expedition.”

As an alternative to striking down the entire request, the plaintiff had suggested that if there were pictures of the plaintiff actually eating (and therefore using his jaw) that might be discoverable, and that is all that the court granted.

A pattern has emerged. And the question is, will Hollingsworth, having now lost twice (that I am aware of), continue to swing away with its wiffle ball bat?

February 24th, 2012

New Facebook Discovery Decision: Another Defendant Shot Down

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.

October 28th, 2011

Appellate Court Strikes Facebook Disclosure Order for “All” Records; Lower Court Forced to Do Review

A New York appellate court yesterday struck a lower court determination that all Facebook records had to be revealed in discovery in an auto accident lawsuit, and directed the lower court to restrict plaintiff’s Facebook information only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

That order, in Patterson v. Turner Construction, essentially forces the lower court to do an in camera review of all the Facebook records, and will similarly force other courts that consider Facebook disclosure demands to appreciate that they may be swamped with documents to review each time such disclosure is considered.

The discovery of social media records is a pretty hot topic, and will continue to be so for some time, as courts struggle to see how the myriad ways that people express themselves, and the spectacular quantities of information that are being created in the digital age, fit into the arena of traditional discovery permitted in personal injury cases. I’ve covered that subject a couple of times before:

The Unseen Danger of Social Media (Twitter, Facebook, and More) (10/20/09)

Demand for Facebook Records Rejected by NY Appellate Court (11/17/10)

So yesterday, the Appellate Division (First Department) reversed a lower court order that had:

granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived

That was a pretty broad lower court order, and the appellate court was not going to endorse it. Facebook records, the Court ruled, “are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, “but at the same time, that doesn’t mean the defendants have carte blanche to go on a fishing expedition through a person’s entire personal life just because they brought a lawsuit. Essentially, the Court must itself go through the discovery to determine if the information “is relevant, in that it contradicts or conflicts with plaintiff’s alleged [claims].”

What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter, emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.

And because this will be such a big burden for lower courts, judges are likely to demand that the requesting litigants show a “factual predicate” for making the demand in the first place, that the Fourth Department discussed last year in McCann. V. Harleysville Ins. Co. That court wrote:

Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence

So that is the current state of New York law on trying to obtain Facebook records. A defendant must show a “factual predicate” to make the demand, and if the court grants the request, then the Court will have to go through the records itself to find anything that might be relevant.

The basic rule of the digital age should be this: Don’t type anything to anyone or type anything into any forum, that you will be ashamed to see on the front page of the paper or exposed one day in a courtroom. The story of Dr. Flea should have made that clear.