Archive for the ‘Facebook’ Category

Can New Protective Order Law Be Used for Facebook Demands?

Facebook-logoThe New York Law Journal has a short article today on an expansion of New York law regarding protective orders from over-reaching discovery (CPLR 3103(a)). Governor Cuomo signed it yesterday.

While it has long been the law that any person from whom discovery is sought may object to a discovery demand, the new amendment now includes objections regarding others who may merely be mentioned in the discovery being sought.

This can, as I’ll explain in a moment, be used to protect against many aspects of Facebook, social media and email demands.

The rationale for the law, however, didn’t have anything to do with Facebook. This is the simple (and quite logical) reasoning from the memo accompanying the bill:

Not addressed [in the current law] is a person about whom records are being subpoenaed from either a party or another nonparty. By way of example, if an accountant is subpoenaed to produce the records of clients who are not parties to the litigation, it is unclear under the present statute whether the non-party clients would have standing to object to the production of their records.

This is easy to understand if an accountant’s records are sought. Just because there may be a lawsuit regarding one aspect of your accountant’s practice, having nothing to do with you, does that mean that your private records should be disclosable? Shouldn’t you at least have standing to object?

The law was proposed by Chief Administrative Judge A. Gail Prudenti and her Advisory Committee on Civil Practice to fill a procedural gap.

But what if Facebook records are sought? These requests are getting more common as the months go by, and I’ve collected a few New York decisions on the matter.

The scenario in which it would come up is easy to foresee: Joe busts his arm in a car collision (not an accident). He writes about it on Facebook. His friends, who have their privacy settings maxed out, respond. Perhaps one of them jokes in a comment or private message, “You been drinking again?”

Are the comments and messages of the friends discoverable? The law here, of course, is not whether those comments may be admissible at trial, but merely discoverable. Can the defense lawyers go on a fishing expedition through the comments and messages of friends and their lives? These friends clearly have an expectation of privacy, as Facebook has explicitly told them so.

It seems to me that this new law can, will, and should, be used to combat over-reaching Facebook demands. Expect to see decisions on this in a year or two.

What Does A Smile Mean? (Updated x2)

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman in the hospital after the Boston Marathon bombing

Jeff Bauman is in the picture to the right. He is in the news right now because he had the great misfortune of being near one of the Boston Marathon bombs.

In the picture Bauman is smiling and giving a thumb’s up. He is also missing both of his legs. Actor Bradley Cooper is to the left and New England Patriots wide receiver Julian Edelman (who tweeted the picture) is to the right.

As soon as he woke up in the hospital, he asked for pen and paper to write that he saw the bomber and then went on to help the FBI.

I bring this smile photo up today because, over the years, I’ve covered several rulings by courts that deal with defense attorneys asking to fish through the Facebook and other social media sites of plaintiffs. They ask to fish because the plaintiff is smiling in a photo and claim that the smile is inconsistent with suffering.

Here are two examples: In Davids v. Novartis,  drug-maker Novartis went fishing on the basis of a smile in a photograph and Magistrate Judge Williams D. Wall slapped it down, writing, “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

By contrast, a Suffolk County judge permitted access to Facebook based on the same theory, writing in Romano v. Steelcase:

In this regard, it appears that plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. (see also, in contrast,  Eric Goldman’s commentary on the Romano photo)

Perhaps future courts will take note of the picture of Bauman, with a smile and a thumb’s up, to note that a smile in a snapshot does not magically mean everything is well.

As Bauman makes abundantly clear in this picture, people can smile for a multitude of reasons. It may be because they are happy to be alive. Or because someone said something humorous, even at a funeral. Or simply because of instinct when someone lifts a camera and hollers, “Say cheese.”

Judges and practitioners, please take note.

Heather Abbott, of Newport, R.I., is wheeled into a news conference past members of the media, behind, at Brigham and Women's Hospital, in Boston, Thursday, April 25, 2013. Abbott underwent a below the knee amputation during surgery on her left leg following injuries she sustained at the Boston Marathon bombings on April 15. (AP Photo/Steven Senne)Updated (4/26/13) – Another smile, this time from bombing victim Heather Abbott. One week after the bombing, she had her leg amputated. Prior attempts to surgically repair the leg had failed.

Three days after the amputation she appeared at a press conference. And smiled. You can see her expression here.

A smile may mean many things.

Updated June 24, 2013: People Magazine ran a cover photo in its June 11, 2013 edition — three amputees, three brave smiles. If a defendant tries to claim a smile in a photograph means the person isn’t injured, just show them this cover.PeopleMagazine-BostonStrong

Another Facebook Fishing Expedition Gets Slapped Down

The Facebook decisions seem to be coming fast and furious now.

Today, the Appellate Division (First Department) shot down yet another attempt by a defendant to go fishing around the plaintiff’s personal life, simply because Facebook activities “may reveal daily activities that contradict or conflict with”plaintiff’s claim isn’t enough. No way, said the appellate court, not good enough.

“Mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account’s usage.”

“To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account — that is, information that “contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

So sayeth the court in Tapp v. New York State Urban Dev. Corp.

The other Facebook decisions and discussion on my site are at this link.



NY Judge: Facebook Discovery Reviews May Open Flood Gates

This Facebook discovery decision came down January 11th. It is one that I’ve expected for a long time.

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.

App Court: You Ain’t Gettin’ Those Facebook Files

Another defendant attempts to get access to a personal injury plaintiff’s Facebook and other social media accounts, and another defendant is shot down by an appellate court.

This one comes out of New York’s Appellate Division (4th Department). Kregg v. Maldonado, decided a few days ago,  deals with a motorcycle accident and a suit against Suzuki. As per the court:

The Suzuki defendants moved, inter alia, to compel the disclosure of the “entire contents” of those and any other social media accounts maintained by or on behalf of the injured party. Plaintiff objected to such disclosure on the grounds of relevance and burden, contending that the demand for disclosure was a “fishing expedition.” Supreme Court agreed with the Suzuki defendants that they were entitled to such disclosure. That was error.

The authority the appellate court cited to was McAnn v. Harleysville, also a 4th Department case, which I discussed two years ago. Missing from the defendant’s demand, and the heart of the McAnn ruling, was that there had to be some “factual predicate with respect to the relevancy of the evidence.” But there wasn’t.

The defendants were, in essence, on a simple fishing expedition (or, perhaps, a billing expedition) hoping that something would come up that might contradict the plaintiff’s testimony in some way. But that is not a sufficient reason under the law to demand access to private materials.

The court ruled that:

As in McCann, the proper means by which to obtain disclosure of any relevant information contained in the social media accounts is a narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident.

Expect to see continued attempts by defendants to pry into social medial accounts marked private, and attempts to create “factual predicates” upon which to make such demands.

Facebook Says “Privacy Expectations” On Its Site

Demand in personal injury suits for Facebook details are becoming more common, as I’ve posted about recently. One of the defense arguments is that there is no expectation of privacy for things posted on Facebook, regardless of the privacy settings, so the lawyers should be able to snoop.

Now, just so the record is clear, Facebook says otherwise. In a posting today on its own site, Chief Privacy Officer Erin Egan wrote that there is an expctation of privacy. The reason for her post was a recent story where employers were asking job applicants for their Facebook passwords, or to have one of their managers “friended,” so that the company could go rummaging around in the personal lives of the applicant. Sort of like asking to see someone’s email account, only much worse. She wrote that “This practice undermines the privacy expectations and the security of both the user and the user’s friends.”

Egan wrote with respect to the expectation of privacy and delving into the accounts:

This practice undermines the privacy expectations and the security of both the user and the user’s friends.

There is a clear parallel here to the litigation setting. Users write with an expectation of privacy, and friends of those users do also. So says Facebook. Should a court permit unlimited snooping, it isn’t just the litigant who has been probed by the lawyer, but all of the litigants friends.



New Facebook Decision – Novartis Loses Again

Three weeks ago I ran a story on a New York federal court decision that denied a defendant access to a plaintiff’s Facebook account. Then, two days ago, a Florida federal court decision came out on the same topic. I was about to do a simple update of my original post.

But. While this was a different case, the defendant was the same, Novartis Pharmaceuticals. And the subject dealt with the same medical drug, Zometa, and the same medical condition, osteonecrosis of the jaw. And the law firm is the same, Hollingsworth.

The result isn’t much different either. Novartis made broad claims about wanting unfettered access to the Facebook account of the plaintiff that took the drug, hoping no doubt for a no-holds barred fishing expedition through the plaintiff’s life.

The court however, stuck to this little thing called relevance, and shot down 99% of the defendant’s fishing attempt. Defendant’s broad demands were for the plaintiff to:

(1) produce the log-in information to his Facebook account and any other social networking websites he may belong to; and

(2) execute a waiver allowing Defendant to directly obtain these materials held in the corresponding databases;

or, in the alternative, directing Plaintiff to produce all photographs added to any social networking website that depict Plaintiff from the date of the development of his alleged injury, regardless of who posted the photograph.

In Childs v Novartis, Magistrate Judge Joel Toomey wrote that Novartis was clearly overreaching, and said that Hollingsworth’s demand was not “reasonably calculated to lead to the discovery of admissible evidence” and that this was “the proverbial fishing expedition.”

As an alternative to striking down the entire request, the plaintiff had suggested that if there were pictures of the plaintiff actually eating (and therefore using his jaw) that might be discoverable, and that is all that the court granted.

A pattern has emerged. And the question is, will Hollingsworth, having now lost twice (that I am aware of), continue to swing away with its wiffle ball bat?



New Facebook Discovery Decision: Another Defendant Shot Down

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.

Appellate Court Strikes Facebook Disclosure Order for “All” Records; Lower Court Forced to Do Review

A New York appellate court yesterday struck a lower court determination that all Facebook records had to be revealed in discovery in an auto accident lawsuit, and directed the lower court to restrict plaintiff’s Facebook information only to that which is “relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”

That order, in  Patterson v. Turner Construction, essentially forces the lower court to do an in camera review of all the Facebook records, and will similarly force other courts that consider Facebook disclosure demands to appreciate that they may be swamped with documents to review each time such disclosure is considered.

The discovery of social media records is a pretty hot topic, and will continue to be so for some time, as courts struggle to see how the myriad ways that people express themselves, and the spectacular quantities of information that are being created in the digital age, fit into the arena of traditional discovery permitted in personal injury cases. I’ve covered that subject a couple of times before:

The Unseen Danger of Social Media (Twitter, Facebook, and More) (10/20/09)

Demand for Facebook Records Rejected by NY Appellate Court (11/17/10)

So yesterday, the Appellate Division (First Department) reversed a lower court order that had:

granted defendants’ motion to compel an authorization for all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived

That was a pretty broad lower court order, and the appellate court was not going to endorse it. Facebook records, the Court ruled, “are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access, “but at the same time, that doesn’t mean the defendants have carte blanche to go on a fishing expedition through a person’s entire personal life just because they brought a lawsuit. Essentially, the Court must itself go through the discovery to determine if the information  “is relevant, in that it contradicts or conflicts with plaintiff’s alleged [claims].”

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.

And because this will be such a big burden for lower courts, judges are likely to demand that the requesting litigants show a “factual predicate” for making the demand in the first place, that the Fourth Department discussed last year in McCann. V. Harleysville Ins. Co. That court wrote:

Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence

So that is the current state of New York law on trying to obtain Facebook records. A defendant must show a “factual predicate” to make the demand, and if the court grants the request, then the Court will have to go through the records itself to find anything that might be relevant.

The basic rule of the digital age should be this: Don’t type anything to anyone or type anything into any forum, that you will be ashamed to see on the front page of the paper or exposed one day in a courtroom. The story of Dr. Flea should have made that clear.

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue:

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