All’s Fair In Love And Pretrial Discovery

Employment / Personal Injury / Business

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. 


In a recent New York case, Romano v. Steelcase, Inc., a judge ordered a woman injured at work to authorize Facebook and MySpace to release all of her records and posts to defense counsel (Yes, a judge can require a party to permit access rather than making the other party go to the trouble of serving a subpoena).  Apparently, there was already enough evidence in her public information to cast doubt on her claims of serious limitations.  The judge cited various Facebook and MySpace privacy policy warnings that state even private posts may become public as proof that the plaintiff did not have a reasonable expectation of privacy in what she posted online.  Moreover, in light of what the judge already viewed as facts contrary to the woman’s injury claims and sworn testimony, he was not about to allow her “to hide relevant information behind self-regulated privacy settings.” 


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.

pretrial discovery

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