Court Says Personal Injury Plaintiff Has To Give Defendant Access To Facebook & Myspace Info

from the privacy-schmivacy dept

A woman who sued office furniture company Steelcase after claiming serious injuries after falling off a Steelcase chair has been told by a judge that she needs to give Steelcase access to private Facebook and MySpace postings, as the company claims that the publicly available information contradicted her claims of injury and harm. Steelcase noted that what could be seen publicly:

“reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation.” For example, Steelcase said Romano’s public profile on Facebook depicted her “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

Because of this, Steelcase claimed it should get access to the private parts of her MySpace and Facebook accounts as part of the discovery process. Facebook actually jumped in at this point to side with the woman, noting that handing over info on the woman’s profile would like violate the Stored Communications Act. MySpace did not bother to get involved to protect its user (does anyone still even work there?).

The judge, however, felt otherwise, and ordered that the information be turned over, saying that it was “reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” I do understand the basic reasoning, but it does seem troubling, as there may be plenty of other private information that’s revealed in this manner.

The judge’s Fourth Amendment analysis is also troubling. He pointed out that both MySpace and Facebook warn users that content they post may be seen by others — and, from that, concludes that there’s no expectation of privacy:

“Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites or they would cease to exist,”

That seems to be taking the terms of service out of context however, and seems like really questionable reasoning. Just because some info could be seen by others, does not mean that all info is considered available to the public with no expectation of privacy.

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Comments on “Court Says Personal Injury Plaintiff Has To Give Defendant Access To Facebook & Myspace Info”

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Mike C. (profile) says:

Both sides

I can see both sides here. From the defense side of things, this is pre-trial discovery and not everything found will make it to the trial (assuming there is no settlement). NY has very liberal discovery rules and the public face the plaitiff has displayed shows an active lifestyle – a point the plaitiff did not appear to refute.

That being said, I think the plaintiff would have been off adding a comment to the effect of “The public profile represents an image the plaintiff wanted to project to friends and is not necessarily the full truth”. I don’t know about everyone else, but there have been a few times I’ve been more upbeat online than I’ve been in real life.

I also think the plaintiff’s case could have been helped with an explanation of the specific elements that SteelCase was pointing out. For example, in 2006, I ruptured one of my Achilles tendons. For the next 3 months, it was wheelchairs and crutches if I wanted to go anywhere. In the photos from the time that show me active, what is not shown is the wheelchair that was moved out of frame, my leg in a cast/hard boot below the bottom edge of the photo, the Advil/Percocet that I was taking to deal with the pain, etc. The plaintiff’s public profile represents a “sanitized” image she may be presenting so that she doesn’t come off as a whiner/near invalid all the time.

I’m torn on this one. I think in the end, I’ll reserve my outrage because I feel Steelcase has a right to full disclosure in order to defend themselves and they’ve at least presented a prima facie case for the need. Ultimately, I think I see this more as a failure of the plaintiff’s attorney to properly litigate the case.

Berenerd (profile) says:

Re: Both sides

I was actually thinking something like this. They are either seeing pictures and posts pre-injury or edited to keep family members from worrying. I do that myself. Also, I would think they could find this information out simply by having someone watch her. I know when my dad became permanently disabled they had people following him around for 2 years trying to prove that he was uninjured. the only bit of evidence they got on him was a picture of him lifting a large box into our van. (the box was filled with Styrofoam peanuts and the judge threw the evidence out). Just weird I guess.

Almost Anonymous (profile) says:

Re: Both sides

“””I don’t know about everyone else, but there have been a few times I’ve been more upbeat online than I’ve been in real life.”””

That is an excellent point. I don’t have a problem with the profile, even the private parts, being used for discovery, but I don’t think that everything expressed there should automatically be assumed to be true; heck, I’m not even sure that “Internet” sources should even necessarily be admissible due to the flexible(alterable) nature of digital information. I don’t think courts should even accept photographs as evidence anymore unless they have a “photoshop” analyst that is willing to state under oath that a picture has not been altered.

BBT says:

so silly

The judge’s reasoning is so silly. Agreeing to share information with a select group of others is not equivalent to agreeing to share information with anyone who wants it.

“Thus, when Plaintiff had her phone conversation with Bob, she consented to the fact that her personal information would be shared with others [namely Bob]. Indeed, that is the very nature and purpose of a phone.”

jc (profile) says:

Re: so silly

I was actually wondering about this because it is not clear from any of the articles, is the 4th amendment claim in relation to obtaining more information or in relation to the information already obtained?

If the plaintiff is trying to block the evidence that has already been discovered on her profile and subsequently the evidence that could be discovered through her private profile, then I think the judge’s reasoning is sound. For example if they made a fake user, friended her, gathered information, and are asking for more … I’m not sure thats any different than private detective work.

A concern I have always had about “social networking” (going back to the days of livejournal) is that people, especially passive-aggressive types, like to claim that this is “their private diary” or “just something for themselves” but it isn’t. Once you publish something, I think privacy becomes a lot more complicated. I think of e-mail as private, and phone conversations, but Facebook doesn’t really pass the laugh test when it comes to privacy. If anything Facebook is intended to make the details of your private life public; it’s part of our “LOOK AT ME” culture.

BBT says:

Re: Re: so silly

If I show a photo to my friend, have I “made it public”? No, I’ve revealed it to a specific person I wanted to reveal it to, not the public.

If I show a photo to 100 of my friends, have I made it public? No, I’ve revealed it to a specific group of persons that I wanted to reveal it to, not the public.

If I happen to show those friends the photo using Facebook, it doesn’t magically change things because it’s on a computer. Facebook provides the ability to broadcast to the public, but that is not relevant to a user who is not broadcasting to the public.

In this case, they have things she made things publicly available which lead them to hope she may have also made things privately available that would help their case. Through my limited understanding of the discovery process, this is probably reasonable. However, Facebook is in no way a special case- whatever she posted on Facebook should be provided the same privacy protections as any other private communications using some other method. That is to say, if she made a status post only visible to her 257 friends, it should be treated identically to if she sent an email to those same 257 friends.

The judge bringing up Facebook warnings is a red herring that shows the judge is not on solid logical footing.

The best part is “notwithstanding her privacy settings”. So the judge is clearly aware of the fact that the privacy settings exist, but has arbitrarily chosen to ignore them (presumably because they contradict his a priori conclusion?).

jc (profile) says:

Re: Re: Re: so silly

You’re right, it doesn’t magically change things when something is done on a computer, but it does change things.

In many cases displaying something to a group or communicating something to a group of people reduces your expectation of privacy. And in almost all cases documents are considered fair game in civil proceedings unless you seek specific protections (or the document is protected under some other law.) As to whether you agree with the law … thats another matter.

We’re not talking about the police breaking down her door, we’re talking about someone voluntarily filling (what i’ll assume is a frivolous) lawsuit and then balking when they realize that the defense has a right to evidence which the plaintiff has chosen to publish and share with third parties (including Facebook, after all she “shared” the photo with them.)

BBT says:

Re: Re: Re:2 so silly

Hopefully you’ll note that I said the discovery request is probably reasonable. It seems like this is exactly the sort of thing that the discovery process exists for. All I’m saying is the communication via Facebook shouldn’t be seen any differently from communication via other means. The judge’s reasoning is seriously flawed. He contends that because Facebook warns users that it’s possible to use the platform to broadcast something to the public, and users consent to that, it makes their information fair game. But a user can read that warning and say “OK, I’ll set my privacy settings so that can’t happen”. Like if I buy a McDonald’s coffee and acknowledge the warning that it is piping hot, my course of action would be to avoid spilling the coffee on my lap. My acknowledgment of the warning is by no means granting consent to anyone to take the coffee and dump it on my lap.

Facebook users acknowledging that the platform can be used to broadcast publicly is likewise not granting any sort of consent for their private information to be broadcast publicly.

Tod C says:

how discovery works

The “no expectation of privacy” ruling aside, I have a friend who does discovery work part time. The defendant doesn’t get blanket access to her account. (Or at least, shouldn’t.) A third party company goes through her account data looking for relevant information, and only relevant information is passed to the defendant.

Chris Ball (profile) says:

Sounds like normal discovery to me

Admittedly I don’t know anything about the rules of civil procedure in whatever state this is in, and I haven’t read the judgment, but: how is this news? When you get into a lawsuit, you have to turn over any relevant non-privileged documents. And that includes Facebook messages. Otherwise it’s not fair to the other side. Any issues of privacy go only to whether or not the documents should be kept confidential as between the people involved in the lawsuit and the public. And as far as I can tell, that isn’t the issue here.

Danny says:

Re: Sounds like normal discovery to me

” When you get into a lawsuit, you have to turn over any relevant non-privileged documents. And that includes Facebook messages.”

I think the argument is, “Are Facebook (or any social network) messages privileged documents.”

I myself wonder if the Steelcase is simply going on a fishing expidition with hopes of finding a smoking gun. Since they already have access to her public information I’m really not seeing why they should be allowed to go through her personal information. But there’s 2 things I’m worried about.

1. That Steelcase will expect to (and probably try) simply get ALL of her private information and then go through it at their leisure.
2. That regardless of how this goes down this case may become a “Hey if I twist the wording just right I can get access to anyone’s private info.” card.

Faceless Minion (profile) says:

Re: Re: Sounds like normal discovery to me

Why are you wondering what their motive is here? She had a facebook account showing her happy and active. There is obviously something going on there. If it’s just her trying to put on a brave front, more power to her… but personally I doubt it. I’d say disability fraud is a far higher chance here.

Gracey (user link) says:

Re: Re: Re: Sounds like normal discovery to me

That’s just an assumption.

My facebook profile image is 13 or 14 months old – smiling and happy. That doesn’t mean I’m the same today. It means I don’t want to get in front of the camera anymore…go figure.

I agree the defendant is entitled to discovery – I don’t see that as being an issue at all.

What I see as the issue is people simply assuming a picture of anyone represents their current state – physically or mentally.

btr1701 (profile) says:

Re: Re: Sounds like normal discovery to me

> I think the argument is, “Are Facebook (or any
> social network) messages privileged documents.”

I can’t imagine why they would be. They don’t meet any of the statutorily recognized privileges (priest-penitient, doctor-patient, etc.)

If my private bank records aren’t exempt from discovery, why would my Facebook posts be exempt?

ElSteevo (profile) says:


It’s pretty much normal discovery, Steelcase can go after information that may lead to something admissible at trial.

That being said, the preferred method, if there is unrelated (i.e. financial data) information in the profile and other content, is an in camera review by the judge, where the judge looks at everything, then releases the relevant portions to the defendant.

curtis (profile) says:

this could go either way

sure steelcase could find a smoking gun. or it could find that she had a very active lifestyle before the incident and now she doesn’t. this could look very bad to them if all the active pictures are date before the incident.

personally, i think she is playing the lottery, but i’m usually pretty cynical about people who fall out of chairs.

Anonymous Coward says:

For those readers unfamiliar with the discovery process, this is indeed how it works. The court here is not ordering a search of the plaintiff’s Facebook account or anything, it’s ordering the plaintiff to hand over a ton of records relevant to her case. Just for comparison, a personal injury plaintiff usually will be required to disclose to the defendant all of her medical records as well. Now of course, those records are considered private (as well they should be), and the court may impose all sorts of conditions on access and use be the defendants, to try to preserve the plaintiff’s privacy as much as possible. But the records are relevant to the case (which the plaintiff brought, remember), and so the defendants get to see them. That’s why several commenters have pointed out that this is no big deal. Indeed, it would be very very strange if a court were to find that Facebook records are somehow entitled to mor eprivacy protection than thing slike medical records, personal emails, etc.

Greg says:

Wait a minute...

She fell off a chair? Was she STANDING on said chair?

You’re not supposed to stand on chairs (although we all probably have done it from time to time), therefore she was using the chair in an unauthorized manner. If you fall and bust your ass while standing on a chair, especially if it was a swivel/rolling chair, you deserve what you get.

Now, how is Steelcase to blame for that? Oh, I know. They shouldn’t be selling chairs that can sense someone standing on it, and in order to free itself of the offending stander, these chairs goes into a wild, uncontrollable roll and swivel, like a bull at a rodeo, causing the offending stander to lose their balance and be thrown unceremoniously to the floor/ground.

This is just like the McDonalds “oh, I spilled your hot coffee on me and burned myself, so it’s McDonald’s fault, not my clumsy self, so they owe me millions” lawsuit.

Give me a break.

Greg says:

Re: Re: Wait a minute...

How do you fall off a chair if you’re not standing on it?

If you’re sitting in the chair, and fall, it’s because you are leaning it backwards or doing somethine else other than just sitting.. not Steelcase’s fault.

If you’re standing on the chair, and fall, it’s because you lost your balance and hit the floor.. again, not Steelcase’s fault.

As for the McDonalds coffee thing.. how was it McDonald’s fault? Talk about not knowing the facts. The restaurant didn’t spill the coffee on her, she did, by putting the coffee cup between her legs and removing the lid. How the hell is this the fault of the company? I don’t blame them for refusing the $20k she wanted. And the idiot jury awarding millions need to be teabagged. That’s one big reason all these damn lawsuits started to begin with. “oh, she got away with her own stupidity, what else can we sue for now?”

I’ll move no when all these lawsuits stop.

BBT says:

Re: Re: Re: Wait a minute...

In the McDonald’s case, the jury agreed with you that it was the woman’s own fault. They found the woman to be mostly responsible for her own injury. McDonald’s was found partially liable due to the jury becoming convinced by the evidence that McDonald’s had been negligent. They found McDonald’s failed to take steps to prevent such an incident from occurring, despite a long history of many incidents/complaints in the past. The jury also considered the dubious idea that the temperature was unfit for human consumption, and thus negligent (ignoring the contention of many that that’s the way coffee is supposed to be made).

jc (profile) says:

Re: Wait a minute...

Ugh, you are so a part of the problem. You need to read up on that McDonalds lawsuit before you try to summarize (; otherwise you end up sounding ignorant (which means uneducated, in case you were not aware)

To summarize the McDonalds case:
1. The coffee was ~185 degrees, coffee at home is normally ~135 degrees.

2. McDonalds had 700 insurance claims for coffee burning people in the 10 years proceeding this, many of the claims were very similar.

3. The woman suffered 3rd degree burns (permanent loss of feeling) on 6% of her body because the coffee was so hot; she had to have a skin graft. Also, she was not driving as many have claimed.

4. In discovery, a bunch of information came to light that McDonalds knew the coffee was too hot, knew that people were drinking it immediately when it was served, knew that peoples mouths and throats were sometimes being burned and still decided to keep the coffee hot so it would last longer.

5. The woman only filled a claim for medical bills ~$20,000 but McDonalds took it to court … where she was awarded almost 3 million in punitive damages to punish McDonalds for its willful neglect, which a judge reduced to 800,000. McDonalds then appealed the ruling and ultimately settled out of court and the details are still a secret.

Gracey (user link) says:

Re: Re: Wait a minute...

The coffee was ~185 degrees, coffee at home is normally ~135 degrees.

Interesting. The coffee at my house brews at 192 degrees – it says so right on the coffee pot. Instant coffee is 212 degrees (the boiling point of water), so both instances are hotter than McDonalds coffee.

No idea what coffee shops brew at but 135 would be lukewarm.

jc (profile) says:

Re: Re: Re: Wait a minute...

You shouldn’t boil water to make coffee, it ruins the taste. Also, there are much hotter coffee pots made for home use now.

This happened in 1992, 20 years ago – long before the Starbucks revolution turned everyone into a “barista.”

Just as a side note, 135 degree water is hot, your home hot water heater probably averages around 120 degrees.

Gracey (user link) says:

Re: Re: Re:2 Wait a minute...

Boiling water to make instant coffee is pretty standard practice. Instant coffee (not really coffee in my book) made with water that hasn’t been brought to a boil is digusting, just like coffee out of those coffee machines. ugh – barely warm.

120 degrees is not near hot enough to make tea, coffee or even hot chocolate, nor is 135 degrees.

Sorry – not trying to be obtuse, but really…boiling water is how you make hot drinks, unless they are brewed drinks, like in a coffee brewer.

At least in Canada.

It would be interesting to go look up the temps of our favourite coffee shops here…might have to go do that for curiosity’s sake 🙂

Greg says:

Re: Re: Wait a minute...

Yea, I know the case.

otherwise you end up sounding ignorant (which means uneducated, in case you were not aware)

Don’t talk down to me like that. You wouldn’t win in a battle of wits if I chose to engage in such with you.

And I believe you’re not understanding what I’m saying.

I’m all about fault here. It was not the fault of the company that sold the coffee. It’s the fault of the person that removed the lid with it between her legs!

She’s the reason irons have a warning label that says “Do not iron clothes while wearing” and don’t put your hands or other body parts under the mower deck while the blade is spinning.

Just as in this case, falling off a chair, which, to me, and anyone with ANY sense at all, means she was using the chair in an unauthorized manner, puts all fault on the user of said chair.

The ONLY way Steelcase would be at fault is if she were sitting in the chair, using it like it’s intended to be used, and the chair failed, causing a fall. That scenario, while possible, I just find to be very unlikely.

Too many people want to blame the maker of a product rather than put the blame where it belongs. No one has accountability anymore.

BBT says:

Re: Re: Re: Wait a minute...

But the jury found that the woman was at fault (IIRC they decided 80% by the flawed logic of our court system where fault is a concrete value that must add up to 100%).

They just also assigned some blame to McDonalds due to what they perceived as negligence by the company due to the long history of complaints the company had received without taking any sort of steps to try to prevent such things from occurring.

Jimr (profile) says:

So I bet this Judge would all the prosecutors to freely search any suspect’s home, vehicle, etc to see if they can find any potential evidence they might use?
Talk about letting the flood gates open for prosecutors to go fishing. Just accuse someone one, get this judge, then free sift through everything related to the accused and see what/how/if you can use it.

It is a civil matter but you think you would need at least some level of logic that would indicate that you need that evidence. IE: statements that indicated she posted actives to her face book page that validate your argument. Not just simply saying you would like access to ‘see’ if there is anything there for us to use.

btr1701 (profile) says:


This isn’t any different (or more of a privacy violation) than what’s been going on in civil suits for a hundred years or more.

Sue any big company (especially involving some kind of injury) and they’ll hit you with subpoenas and motions to produce bank account records, financial statements, medical records, treatment records, even private diaries, notebooks and personal computers. It’s all fair game, subject only to a “relevancy” standard, which has traditionally been interpreted very liberally.

Just because things like Facebook and Twitter are relatively new phenomena doesn’t mean they aren’t subject to the same legal standards as good old fashioned paper records, which arguably are a lot more private in the first place.

Kris (profile) says:

Case by Case Basis

As someone who has worked for both plaintiff and insurance defence (In Canada and Australia), I would argue that it wholly depends on each case.

In this story, the woman was said to be on Facebook, “smiling happily in a photograph outside the confines of her home despite her claim that she … is largely confined to her house and bed.”

But there may always be more to the story that an insurance company may miss. What if there’s advice from the doctor to try and do the best she can? There are many instances where people may have bad and good days. It is not reasonable to expect that someone who has been injured will always be on the verge of suicide because they can never be happy. Consideration of the medical evidence is something that is not really given in this article.

I also think that consideration should also be made to the claim itself. In this case, drafting the statement of claim to incorporate more specific terms of her limitations may have been appropriate (again, with reference to the medical evidence)

On a personal note, I am never a supporter of any entity that seeks to witch hunt through my personal information just to find something that sticks.

Understandably so, I find that a lot of people tend to be emotional when it comes to matters such as this and that is why it is important to be wary of what they say. Sometimes people may exaggerate or miscommunicate something just out of an explosion of feeling.

This was a good article.

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