Social networking sites like Facebook and MySpace have quickly become a favorite hunting ground for attorneys conducting pretrial discovery. Whether it is a divorce attorney tracking down evidence of a spouse’s illicit affairs or a defense attorney hired by an insurance company looking into the lifestyle of a person claiming to be hindered by injuries, the photographs and other posts people leave behind when their minds are far from litigation are often a fountain of truth.
Before the advent of social networking, defense counsel were already granted wide latitude in discovery of medical records, employment records and even personal diaries, calendars and photograph albums subject always to the court’s determination of whether the sought after information was relevant to the case or was merely a “fishing expedition” or intended to embarrass and harass. The Romano court’s decision simply applied longstanding discovery principles to a new media.
Plaintiffs with legitimate injuries should not fear the expansion of discovery into their private MySpace. Confidentiality orders can require that any information disclosed does not go beyond the litigation. Moreover, it can sometimes be turned to a plaintiff’s advantage. If the defense shows pictures of the injured plaintiff sipping a drink on a beach by the rolling surf, then the plaintiff can show pictures of himself surfing prior to the accident and tell the jury how he can only watch since the injury. Having nagging back pain or other injuries does not preclude one from going on vacation nor require one, as one Pennsylvania federal judge famously noted, “to vegetate in a dark room secluded from all forms of social interaction.”
Of course, the plaintiff who claims to be limited to vegetating in a dark room, but who then posts a picture of herself rock climbing on a Carnival Cruise, can only fault herself for her lack of truthfulness.