Pre-Trial Social Media Issues

March 2, 2011

In a number of recent decisions, courts have examined whether material posted on social networking sites is subject to discovery, whether litigants have a reasonable expectation of privacy to information published on social networking sites, and whether third parties have the right to subpoena the social network provider for access to information within an adversary’s account.  See, e.g., Romano v. Steelcase Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (discovery and privacy); McCann, McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 910 N.Y.S.2d 614 (discovery); Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (third-party subpoena).

In the discovery context, courts are allowing access to material on social networking sites provided that the information sought is relevant to the issues and the request falls with acceptable discovery standards.  In Romano, the plaintiff in a personal injury case claimed that she “had no life” as a result of her injuries and made claims for loss of enjoyment of life.  Because her postings on Facebook and MySpace were believed to be inconsistent with those claims and because they were necessary to the defense, the court allowed discovery of the postings. Similarly, in In Mackelprang v. Fidelity Nat’l Title Agency of Nevada, 2007 WL 119149 (D. Nev. 2000) the defendants viewed the plaintiff’s public MySpace profile after she alleged sexual harassment claims against them.  The court held that the defendants could dig deeper and access through discovery the private messages the plaintiff had exchanged with third parties containing information regarding her allegations.

With regard to privacy concerns, the trend is to reject claims that users have a privacy interest in material they post on social networking sites.  In Romano, for example, the court found that users have no reasonable expectation of privacy because Facebook (like most social networking sites) has a privacy policy informing users that they could not guarantee that only authorized users would have access to their information.

Ethical questions have also been implicated by informal gathering of information from social networking sites for impeachment purposes.   The New York City Bar’s Committee on Professional Ethics recently issued an opinion which concludes that an attorney may not attempt to gain access to a social network site under false pretenses.  The committee noted that while the non-deceptive “friending” an unrepresented third-party may be acceptable, using an office staffer or investigator to pose as an old friend in order to gather information would clearly fall outside of the rules of professional conduct.

The New York State Bar’s Committee on Professional Ethics has also spoken to a related concern – pre-suit gathering of social network information posted by potential parties to a lawsuit.  In a September 2010 opinion, the Committee concluded there was no harm in accessing for information the “public pages” of a social networking site, calling it no different than plugging a name into a Google box.  NY Eth. Op. 843, 2010 WL 3961381 (N.Y.St.Bar.Assn.Comm.Prof.Eth.).  The committee drew a distinction, however, between this and information available only to limited number of select people or “friends.”  They concluded that deceptive attempts to access information hidden behind certain privacy features may cross the line.

The end result of allowing access to social network postings could be the production and use of a trove of new information about parties. Without doubt, this will lead to headaches for litigators who are trying to manage the universe of information relevant to their case.


See Chapter 18 of eDiscovery & Digital Evidence by Jay Grenig and William Gleisner (The Impact of Social Networking on eDiscovery).

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