The backdrop: In the last few years there have been a plethora of demands by defense lawyers in personal injury cases for Facebook (and other social media) information. It often comes in the form of a demand for the plaintiff’s log in information, so that they can go snooping around looking for something damaging.
The first decision of any note came about due to a woman smiling in a photo on Facebook. The photo was public. If the woman is smiling, argued the defendants, maybe she isn’t in as much pain as she claims? (Romano v. Steelcase, 2010) And so it began.
Commercial litigators have dealt with e-discovery for years, sifting through documents that might number in the millions as emails and document drafts are sorted through with sophisticated software. Out-of-work lawyers get hired for peanuts to sit in dreary dungeons going through them.
But such discovery is mostly unknown to the personal injury bar. The exploding use of social media, and the creation of spectacular quantities of data, is now changing that.
This data explosion and the desire of defendants to access it has ramifications for the courts. Who is to say what should be disclosed or not? Well, the court is to say. And in order to say, the court must review. Therein lies the problem.
In Staten Island, Justice Joseph Maltese wrestled with that issue two weeks ago at the trial level in Fawcett v. Altieri. Fawcett’s action alleges assault and battery by Altieri and injury to Fawcett’s eye.
Defendants moved for social media data and the plaintiffs cross-moved for a protective order. The defendants demanded:
authorizations to permit the defendants to obtain full access to and copies of Plaintiff’s current and historical records and/or information and photographs on Plaintiff’s social media website pages, including but not limited to Facebook, MySpace, Friendster, Flickr, and any other social media websites.
In the face of discovery demands, courts have to deal with what his “material and necessary.” The court noted the wide array of things that social media is used for:
The court takes judicial notice that subscribers to these sites share their political views, their vacation pictures, and various other thoughts and concerns that subscribers deem fit to broadcast to those viewing on the internet. Whether these broadcasts take the form of “tweets,” or postings to a user’s “wall,” the intent of the users is to disseminate this information.
This wide array of data is important because, if some material is to be disclosed, someone impartial will have to sift through it. The fact that privacy settings may be cranked up high is unimportant. An old fashioned hand-written diary may be private, but it also may be discoverable in certain circumstances.
And so defendants must show, in order to gain access to private information, a “factual predicate” for doing so, which is another way of saying that a party, to gain access, “must show with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.” In this case, Justice Maltese noted that depositions hadn’t even been held yet, and no actual predicate had been shown.
The judicial burden is extraordinary. The judge noted that “asking courts to review hundreds of transmissions ‘in camera’ should not be the all purpose solution to protect the rights of litigants. Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim.”
This is exactly the point I made back in October 2011 after a lower court told the plaintiff to disclose everything, and the appellate division reversed and threw it back to the trial court to do a “more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” (Patterson v. Turner)
I noted then that, if lower courts were forced to actually do such determinations, they would be swamped by requests. They would have to set the bar of discovery high, just to survive the paper onslaught. I wrote that:
What does this mean for the lower courts? That if they see fit to grant a request for Facebook or similar records, the judge will be forced to do in camera reviews of potentially voluminous records comprising all manner of notes that might come from Facebook, My Space, private blogs, Twitter, emails, texts and other places. The digital age has spawned an extraordinary boatload of information that courts will have to sift through when demands are made by overeager lawyers hoping to stumble upon some smoking gun.
Justice Maltese has concluded, as had I, that someone has to go through all that crap. OK, he doesn’t say it exactly that way, but he comes damn close:
As a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media. These are not matters of national security or part of a criminal investigation. This is a civil tort matter of a minor assault that should have a good faith basis other than supposition, hope or speculation that some comment was made that may be relevant to the case at hand.
This point can’t be made strong enough: Anyone opposing a discovery order for social medial records had damn well better point out to the court that this is not a one-time deal. When the camel’s nose gets under the tent, the rest of the camel will surely follow.