Social Networking and Personal Injury LawA Brave New World: Social Networking Sites and Personal Injury Litigation
By Robert S. Kelner and Gail S. Kelner
Social networking websites such as Facebook and MySpace have become an increasingly popular vehicle for people to communicate with friends and family, share their innermost thoughts, feelings and post personal photographs. These personal websites generate a plethora of personal data and may be an enticing source of information about an unwary plaintiff to adversarial e-wolves. It is no longer “think before you speak.” Now it must be “think before you twitter.” Certain sites allow open access by the public while others, such as Facebook, permit individuals to restrict access to their pages exclusively to their “friends”-i.e., people who have their permission and are invited to view their information. However, there is no assurance of privacy even on the “invitation only” sites.
It is imperative to ask a client whether he or she participates in a social networking site. Plaintiffs in personal injury actions are generally made aware of defendants’ use of traditional videotaped surveillance techniques and warned that they may be on “candid camera” when they leave their homes. The potential incursion into their privacy by unwanted “e-peepers” is becoming an ever increasing issue. Clients must be strongly cautioned, as they would with respect to videotaped surveillance, that not only their public sites may be viewed by defendants but even their private restricted sites may be invaded. In this article, we consider some of the issues raised by the proliferation of the exchange of personal information over the internet and the application of existing legal principles to control potential abuse by aggressive adversaries.
Facebook is a prime example of a social networking site that restricts access to allows its users to share information only with “friends.” The host of a Facebook page chooses what information is put into a profile, including contacts and personal information, pictures, interests and affiliations. More importantly, the user controls those with whom the information is shared through privacy settings. Contact must be made with the host and the viewer (“friend”) must be invited to access the page. It is akin to an “e-living room.”
Gaining access to a party’s restricted social networking page may create serious ethical issues for an intrusive adversary. An invitation will require impermissible contact with the plaintiff. One of our recent cases illustrates improper access by subterfuge with an unsuspecting plaintiff. An insurance investigator created a false Facebook account, purporting to be a student at a university where plaintiff taught classes. Under this electronic guise, the investigator asked plaintiff to grant him access to her Facebook page by “friending” him. Believing him to be a student at her school, she accepted his request. He then regularly monitored her activities through her Facebook account, and periodically printed content from the page for defense counsel.
This conduct was clearly improper. It is well settled that a defendant’s legal representatives or their agents may not have ex parte contact with a plaintiff. However, “friending” someone on Facebook, requires contact with the host to request access to his or her page. The Rules of Professional Conduct, Rule 4.2 prohibits such communication, stating that a lawyer shall not communicate or cause another person to communicate with a person represented by counsel without the prior consent of the party’s attorney. Such conduct may also violate the ethical prohibition against deceitful conduct by attorneys, or those acting on their behalf if subterfuge is used to gain access to a plaintiff’s private web page. The Rules of Professional conduct provide in Rule 8.4(c) that a lawyer shall “not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” In a recent ethical opinion, the Philadelphia Bar Association Professional Guidance Committee addressed the issue of whether an attorney could direct an investigator (or other third party) to attempt to become Facebook “friends” with a non-party witness, whose testimony was apparently helpful to the adverse party. The committee concluded that doing so would be inherently deceitful and unethical, even if the investigator used his own name. The committee rejected the contention that obtaining access to the Facebook page was no different than conducting surveillance stating: “In the video situation, the videographer simply follows the subject and films him as he presents in public. The videographer does not have to ask to enter a private area to make the video.” The committee noted that it would be clearly improper for the videographer to pose as a utility worker to gain access to someone’s home.
Increasingly, the courts are being asked to determine the extent to which adversaries may invade a plaintiff’s personal site. What if a defendant demands that the plaintiff execute an authorization for it to obtain access to the account? Such a request raises tension, familiar in personal injury lawsuits, between plaintiff’s desire to retain some measure of privacy over his personal affairs and defendant’s claim that it is entitled to probe for relevant discovery. A person’s Facebook page will often contain a wealth of intimate information, bearing only peripherally, if at all, on the issues in a personal injury case. People use their electronic bulletin boards to have purely personal running conversations with “friends” as to their private thoughts and feelings. Adversarial access to such personal ruminations is a gross violation of the privacy of plaintiff and “friends.”
The CPLR should provide the judicial framework for much needed restraints on the irresponsible trampling upon a plaintiff’s right to privacy. CPLR 3101(a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." The courts have held that the test is one of usefulness and reason. CPLR 3101 (b) mandates that “[u]pon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.”
Restricting unbridled invasions of privacy have been addressed in the more traditional context of medical records where a lawsuit for injury permits a defendant to obtain plaintiff’s medical records with respect to any physical or mental condition affirmatively placed in controversy. However, the mere fact that a plaintiff brings a lawsuit does not deprive him or her of any right to privacy. If a party seeking discovery fails to establish the relevance and materiality of the information sought, disclosure should be denied. McGuane v. M.C.A., Inc., 182 A.D.2d 1081, 583 N.Y.S.2d 73(4th Dept. 1992). For example, in Helmer v. Draksic 38 A.D.3d 1297, 833 N.Y.S.2d 333 (4th Dept.2007), defendant failed to make the requisite factual showing that the plaintiff’s education records, as well as her family background, were relevant and material to the injuries sustained by plaintiff’s infant son for whose benefit the action was commenced. As such, they were not discoverable. See also DeSilva v. Rosenberg, 129 A.D.2d 609 (2nd Dept. 1987), where the court limited the time period for which past medical records were to be disclosed. Further disclosure was held to be overbroad and overly intrusive.
These same principles are similarly applicable to e-mail and Facebook accounts. When the relevance of electronic communications is attenuated, a court has discretion to limit or deny their production. In Rozell v. Ross Holt, 2006 WL 163143 (SDNY 2006), plaintiff alleged that her supervisor sexually harassed her. When she complained, she was fired in retaliation. After her termination, her supervisor viewed her e-mail account, and forwarded 400 of her e-mails from her America Online account to himself. Subsequently, during litigation, defendant sought production of the remaining contents of her e-mail account, contending that “these communications ‘provide a contemporaneous record of her emotional state both during and after the period she was allegedly harassed.’” However, the court rejected the request for the remaining e-mails, stating: “To be sure, anything that a person says or does might in some theoretical sense be reflective of her emotional state. But that is hardly justification for requiring the production of every thought she may have reduced to writing or, indeed, the deposition of everyone she might have talked to.”
In Mackelprang v. Fidelity Nat. Title Agency of Nevada, Inc. 2007 WL 119149( D.Nev.2007), defendant sought private email communications from plaintiff’s My Space page. The court restricted the demand to the production of relevant private messages from the site, to wit, only those that contained information regarding her sexual harassment allegations in the lawsuit or her alleged emotional distress and its causes. The court held that this demand should not include private email messages regarding allegedly sexually explicit or promiscuous emails not related to plaintiff's employment with defendant.
In Karim v. Natural Stone Industries, Inc., 19 Misc.3d 353 (N.Y. Sup. 2008), the plaintiff alleged that he sustained cognitive limitations as a result of a construction accident and was unable to return to work. At his deposition, he acknowledged that he used a home computer for certain limited purposes. Defendant moved to compel him to produce a copy of his hard drive, contending it would provide relevant information regarding his employability. The court, observing that plaintiff’s employability was ascertainable by other means, denied the motion, as overly intrusive, recognizing that “ the hard drive has private communications and actions of plaintiff and his family that have nothing to do with the limited issue of plaintiff's employability...it would be improperly invasive to order this discovery.”
A further consideration with respect to disclosure of sites such as Facebook is whether such disclosure might violate the privacy interests of the plaintiff’s Facebook “friends.” Courts have discretion to take the privacy of third parties into account when policing the discovery process. Discovery demands that intrude upon rights to privacy, especially of non-parties should not be permitted unless there is a strong showing that the need for disclosure outweighs the importance of protecting privacy interests. See e.g., Matter of New York County DES Litigation, 168 AD2d 44 (1st Dept 1991) where the court held that the privacy interests of the nonparty relatives of the DES plaintiffs were certainly deserving of protection. The broad discovery sought would necessarily invade their “protected 'zone of privacy.' ”
In Van Epps v. County of Albany, 184 Misc.2d 159, 706 N.Y.S.2d 855 (N.Y. Sup. 2000), the two infant plaintiffs allegedly sustained lead poisoning. The defendants sought to compel production of educational and other records relating to the plaintiffs’ sibling, contending that they were relevant to the issue of causation. The court held that the records were not discoverable. While acknowledging that the educational records were not privileged, it found that they were private and entitled to protection. Defendants failed to demonstrate any need for their disclosure that outweighed the importance of protecting the privacy of a non-party. The same reasoning should be applied to the private communications of a party’s Facebook friends.
An area of further concern is that e-mails and text messages are inherently unreliable because of their relative anonymity. There is no way to establish the veracity of communications sent by third parties. As the court St. Clair v. Johnny’s Oyster and Shrimp, Inc., 76 F.Supp2d 773 (SD Texas 1999), noted in considering such concerns:
Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation.
Another issue is whether defendants may seek access to materials on personal websites directly from the social networking site by directing a subpoena to the company that maintains it, without the consent or authorization of the host or subscriber. In analyzing the propriety of such subpoenas, the judicial focus has been on the Stored Communications Act. The Act provides that “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” There is a limited exception to the rule for instances where the company has obtained the lawful consent of the originator, an addressee, intended recipient of such communication, or the subscriber. Analysis of the Act and its scope have been the subject of an increasing number of complex opinions. See, for example, Pure Power Boot Camp v. Warrior Fitness Boot Camp ,587 F. Supp.2d 548(S.D.N.Y.2008), where the court examined what constitutes a “stored communication” subject to the Act, as well as other issues.
In In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp.2d 606 (E.D. Va. 2008), the court quashed a subpoena issued by State Farm Insurance Company to obtain the e-mail records of two investigators directly from America Online, the host of their e-mail accounts, in connection with litigation. It held that the issuance of the civil discovery subpoena was not an exception to the provisions of the Act so as to allow the provider to disclose the communications. In this decision, the court provided a comprehensive analysis of similar holdings.
The law in this area is just beginning to unfold. Its evolution will say a lot about who and what we are. Privacy is a treasured right. Big Brother should not be watching us over the internet.