A potential client walks into your office, claiming an injury by a defective product. The client tells you that life has been forever changed, and the enjoyment of everyday living has been lost. After taking the case, you discover your client has a Facebook account that is used avidly. On the public page are photographs from a recent vacation during which the client went scuba diving and wind surfing. Your adversary has used Facebook to see your client's public pages, which it is ethical to do in New York, so long as she does not "friend" your client, have a third person do so, or engage in "trickery."1 Your adversary serves a discovery demand seeking copies of the public and private pages in your client's Facebook account, and/or an authorization to request same from Facebook. Can you challenge and seek a protective order?
The short answer: Your adversary can properly request the discovery in this scenario.2
New York Social Media Law
New York was for years a lagging state regarding electronic discovery, but has recently become a leader, utilizing the federal framework for electronic discovery and becoming a state whose court decisions are cited by federal courts in other jurisdictions.3 New York caselaw, similar to federal caselaw, requires that there be a "factual predicate" demonstrating relevance of a demand to the private social media pages or deleted materials, before disclosure can be sought or will be compelled by a court.4
For instance, the Appellate Division, First Department, recently held for a requirement of identifying the specific Facebook information that is believed to contradict the plaintiff's claims, since not all of the information on the plaintiff's Facebook account may be relevant or related to the legal action.5 Courts always frown on "fishing expeditions," and in essence the New York courts have held that just as with regard to "analog antecedents" (paper discovery), "fishing expeditions" are simply not permissible just because electronic discovery is invoked.6
Handle With Care
Therefore, converse to the example in the opening paragraph, if either your client's public pages or deposition testimony—or some other source for that matter—does not provide a reasonable basis to believe private social media pages contain material conflicting with the client's claims in the lawsuit, challenge any demand for such materials, engage opposing counsel in a meet-and-confer, or thereafter seek a protective or limiting order from the court.7
Social media is a valuable social and professional tool, but attorneys must take care when dealing with social media as part of electronic discovery in a case. Attorneys must also be able to inform their clients about social media usage, both during a case and before, when litigation is reasonably anticipated. It may be necessary to advise a client to stop posting to social media in any form prior to and during litigation. Be careful, though, to caution them not to delete or alter any material already posted, as that may open up spoliation concerns—an issue for another day.
Michael L. Fox, Chair of the Young Lawyers Section, is the litigation managing attorney at Jacobowitz & Gubits in Walden.
Endnotes:
1. See NYSBA Opinion 843 (2010); see also generally N.Y. City Bar Opinion 2010-2.2; see also N.Y. City Bar Opinion 2012-2, concerning, separately, attorney research of potential jurors on social media.
2. See Romano v. Steelcase, 30 Misc.3d 426, 907 N.Y.S.2d 650 (Sup. Ct. Suffolk County 2010).
3. See VOOM HD Holdings v. EchoStar Satellite, 93 A.D.3d 33 (1st Dep't 2012); 915 Broadway Assoc. v. Paul, Hastings, Janofsky & Walker, 34 Misc. 3d 1229A, 2012 N.Y. Misc. LEXIS 708 (Sup. Ct. N.Y. County 2012); see also Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 (E.D. Mich. 2012).
4. See Matter of Progressive Ins. v. Herschberg, 2011 N.Y. Slip Op. 31288U, 2011 WL 1991960 (Sup. Ct. Queens County 2011).
5. See Patterson v. Turner Constr., 88 A.D.3d 617 (1st Dept. 2011) (however, remember that privacy settings alone do not mean that information on private pages of social media is forever sheltered from discovery); see also Loporcaro v. City of New York, 2012 N.Y. Slip Op 30977U 21, 35 Misc.3d 1209(A) (Sup. Ct. Richmond County 2012) ("When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public").
6. Caraballo v. City of New York, 2011 N.Y. Slip Op. 30605U (Sup. Ct. Richmond County 2011).
7. Winchell v. Lopiccolo, No. 7397/2010, 2012 N.Y. Slip Op. 22337 (Sup. Ct. Orange County Oct. 19, 2012). Do not forget to attach a copy of the discovery demands that are challenged with any motion for a protective order, or any motion to compel. See Gallipoli v. Delano, Index No. 2580/10 (Sup. Ct. Dutchess County Oct. 1, 2012).
