There have been a couple of very interesting opinions coming out of New York recently. I’ll lay out the decisions below, but my reading of these decisions tells me that if you’re a lawyer in New York, you should suggest to your clients that they shutdown their Facebook, MySpace, Twitter, or any other social media account immediately because chances are, the other side will be able to get access to these accounts if they ask.

Opinion 843 – Accessing Public Facebook and MySpace Information for use in trial.

The first is an ethics opinion from the New York State Bar Association (PDF) that asks if a lawyer may:

“view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network.”

Attorneys were still not clear whether looking and using information from a person’s Facebook, MySpace or other social media pages that were public violated the ethical rules of the state. Well, fear no longer my friend, and the Committee on Professional Ethics ruled that:

“A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).”

Romano vs. Steelcase – Access to private and deleted Facebook and MySpace accounts

The second decision came from Judge Jeffrey Arlen Spinner of Suffolk County Supreme Court decision of Romano v. Steelecase (PDF). In this decision, the court granted the:

“Defendant access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information”

In this case where the Plaintiff was asking for damages for personal injuries, the Defense was claiming that they had reason to believe that the Plaintiff posted pictures and information that showed she was not suffering from a loss of enjoyment of life. Not only did the Defendant want to access the private portions of the Plaintiff’s account, but they also wanted access to any deleted information.
Judge Spinner agreed ordered that the:

Plaintiff shall deliver to Counsel for Defendant STEELCASE a properly executed consent and authorization as may be required by the operators of Facebook and MySpace, permitting said Defendant to gain access to Plaintiff’s Facebook and MySpace records, including any records previously deleted or archived by said operators

Bottom line in New York (and possibly every place else in the United States): Expect everything you post on Facebook or MySpace to be considered public information by the courts, and don’t expect that your self-imposed privacy settings will protect you if you’re ever taken to court.

  • Anonymous

    I don't think anybody could have argued even before this that what was on a Facebook page (for example) was not DISCOVERABLE simply by virtue of a privacy setting. If that were the case, I'd just advise all of my business clients to mark their email system records as private and they would suddenly no longer be subject to discovery…

  • I've been in a lot of rooms, with a lot of smart attorneys and people that deal with e-discovery, and this specific question comes up all the time. You'd think that it would be a slam dunk answer of "yes, it is discoverable", but there have been a number of times where I've seen the group argue the point about the "privacy settings" and leave the room shrugging their shoulders as to what protections a person would get from the court by taking this type of action to protect their individual privacy.

  • A question for lawyers:

    Is private == not shared in legalese?

  • John Gragson

    @Saqib: No. The relevant legal concept is privilege, which allows the protection of information from discovery in court proceedings. It would be stunning if a court actually found that information or statements posted on Facebook were privileged simply by virtue of the user claiming his privacy settings precluded their dissemination. Like the "anonymous" comment says, you can't define your own privilege. Perhaps if your only "friends" were your lawyer, your doctor, your priest and your wife… And perhaps the privacy settings could be somehow mitigating evidence in a libel case–but basically anything you share by any means of communication that's not privileged is discoverable, whether you shout it from the rooftop or whisper it to your best friend (leaving aside the practical aspects of proving it of course; electronic media make that much easier).

    Better advice than "shut your Facebook page down now" would be "duh, what you put on Facebook is not privileged and is probably pretty easy for the other guy to root out, so you should think before you hit 'share'."

  • @John

    Thanks. That was very helpful. So in that case, I really see no new revelation in the NY's Opinion. Or am I missing something?


  • John Gragson

    @Saqib: You pretty much got it. I wouldn't say there was anything radical or controversial about the rulings, they are the same I would expect from most any judge.

  • Anonymous

    Wonder why lawyers are so hated? Will we ever end the rule of lawyers? Disgusting.

  • @saqib and John,

    The big difference here is that this judge actually wrote it down and it now gives the US legal system something to point to. As we all know, our laws aren't based on common sense (which is what we seem to be reading from the opinion), but rather by precedence. So, the biggest thing here is that we now have US Court precedence to point to regarding Facebook & MySpace rather than some the Canadian case that Judge Spinner had to use in this case.

  • @Greg : Good point. Stare Decisis plays a key role in our legal system