Do NY Courts Consider Social Media Posts Public or Private?

Do NY Courts Consider Social Media Posts Public or Private?

William S. Maseroni's picture

As we all know all know social media sites such as Facebook, MySpace, Twitter LinkedIn has become an intricate part of our lives. These sites allow us to connect to our colleges, new and old friends and professional acquaintances on a daily basis. We openly share our opinions, daily struggles, health, current and future plans and pictures. Sharing this personal information can be virtually instantaneous and, of course, worldwide. It is estimated that there over 800 million registered Facebook users worldwide and there are over 150 million tweets every day. As social media has grown so has their use by insurance companies that want to know more about the people they insure. Disability, medical liability and workers compensation insurers now regularly use Facebook & Twitter to uncover fraud.

Here are some very interesting facts:


  • 800 million active users
  • More than 50% of the active users log on each and every day
  • The average user has 130 friends
  • The average user is connected to 80 community pages, events and groups
  • Over 200 billion posts are liked or commented on each day.


  • Over 100 million active users
  • More than half log on each day - Approximately 55 million
  • 40 % of active users log in to read about what is happening in their world.


  • More that 120 million users
  • Operates the world’s largest professional network on the internet
  • More that 2 million companies have LinkedIn company pages
  • LinkedIn counts executive from all 2011 fortune 500 companies as members.
  • Its corporate hiring solution are used by 75 of fortune 100 companies
  • LinkedIn represents a valuable demographic for marketers with an affluent and influential membership
    These are staggering statistics. With this amount of growth and vast information it canbe quite useful tool for investigators and others.

Law enforcement, attorneys and private investigators use social media sites as a tool to obtain useful information on people that can be used for future litigation. As a result courts have been forced to decide whether information that parties to a lawsuit have made available via social media is discoverable. The recent decision in Romano v. Steelcase Inc. sheds significant light on that issue under New York law. Courts have to decide if the evidence or information from social media sites that is brought forth to the court by parties to the lawsuit is discoverable. Analysis of the discoverability of social media content begins with CPLR 3101, which provides for full disclosure of all non-privileged matter that is both material and necessary to the defense or prosecution of an action. This means that trial courts have broad discretion when supervising pretrial discovery, including in determining what is material and necessary. The courts have decided that something is “necessary” for purposes of pretrial discovery when it is needed, even if it is not indispensable. Courts have said that, together, the “material and necessary” standard should be interpreted liberally, requiring disclosure of any facts bearing on the controversy that will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of “usefulness and reason.

In the Romano v Steelcase Inc. case the court considered all of these principles when it concluded that disclosure of portions of the Plaintiff, Romano’s Facebook & MySpace accounts was warranted.
Let me a briefly as possible describe the circumstances of the Romano v Steelcase Inc. case.

The plaintiff, Romano brought suit against Steelcase for personal injuries she claimed she suffered. Steelcase reviewed the public portions of the plaintiff’s MySpace and Facebook pages and discovered revealed that the plaintiff had an active lifestyle during the time period she claimed her injuries prohibited such activity.

Steelcase then sought to question the plaintiff at her deposition regarding her MySpace and Facebook accounts, with negative results. Following those depositions, Steelcase served the plaintiff with a Notice for Discovery and Inspection requesting, among other things, “authorizations to obtain full access to and copies of Plaintiff’s current and historical records/information on her Facebook and MySpace accounts.”
The plaintiff refused to provide the requested authorizations, and Steelcase applied for an order granting it access to the plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.

Steelcase argued that the plaintiff had placed certain information on these social networking sites that it believed was inconsistent with claims she was making with respect to the extent and nature of her injuries, especially with respect to her claims for loss of enjoyment of life.

The court agreed with Steelcase and granted its application. The court explained that plaintiffs who place their physical condition in controversy may not shield from disclosure material that is necessary to the defense of the action. The court further stated that in an action seeking damages for personal injuries, discovery generally is permitted with respect to materials that may be relevant both to the issue of damages and the extent of a plaintiff’s injury. That includes plaintiff’s claim for loss of enjoyment of life. The court explained that the plaintiff claimed that she had sustained permanent injuries as a result of an accident and that she could no longer participate in certain activities or that these injuries had affected her enjoyment of life. In the court’s view, the information sought by Steelcase regarding the plaintiff’s Facebook and MySpace accounts was “both material and necessary” to Steelcase’s defense of the lawsuit, and/or could lead to admissible evidence.

In this regard, the court said, it appeared that the plaintiff’s public profile page on Facebook showed her smiling happily in a photo outside her home despite her claim that she had sustained permanent injuries and was largely confined to bed.

In light of the fact that the public portions of the plaintiff’s social networking sites contained material that apparently was contrary to her claims and deposition testimony, there was “a reasonable likelihood” that the private portions of her sites might contain further evidence, such as information regarding her activities and enjoyment of life. All of that, the court added, was material and relevant to Steelcase’s defense.

The court ruled that preventing Steelcase from accessing the plaintiff’s private postings on Facebook and MySpace “would be in direct contravention to the liberal disclosure policy in New York State. Denying discovery would condone what the court characterized as the plaintiff’s attempt “to hide relevant information behind self-regulated privacy settings.”

The court also rejected the plaintiff’s privacy concerns, deciding that disclosure of her entries on her Facebook and MySpace accounts would not violate her right to privacy and that, in any event, any such concerns were outweighed by Steelcase’s need for the information.

The court concluded that, because neither Facebook nor MySpace guaranteed complete privacy, the plaintiff had no legitimate reasonable expectation of privacy. In this regard, it referenced Facebook’s privacy policy, which currently states that “no security measures are perfect or impenetrable. We cannot control the actions of other users with whom you share your information. We cannot guarantee that only authorized persons will view your information. We cannot ensure that information you share on Facebook will not become publicly available.

The court decided, because the plaintiff knew that her information might become publicly available, she could not claim that she had a reasonable expectation of privacy.

The court also noted that Steelcase had attempted to obtain the information via other means (e.g., via deposition and notice for discovery), but that they had proven to be inadequate. It then concluded that without access to this information, Steelcase would be “at a distinct disadvantage in defending this action.”

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