Employment-New York State Court Rules That Defendant Can Have Access To Plaintiff’s Facebook And MySpace Accounts

In Romano v. Steelcase Inc. and Educational & Institutional Cooperative Services Inc., No. 2006-2233 (Supreme Court, Suffolk County 9/21/10), the plaintiff claimed that she had been permanently injured at work, and sought substantial damages from her employer on the grounds that this injury caused her to suffer loss of enjoyment of life. The defendant asked the Court for an order granting the defendant access to the plaintiff’s non public current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, on the grounds that the plaintiff had placed certain information on these sites which was inconsistent with her claims. The defendant contended that a review of the public portions of these pages and accounts reveals that the plaintiff has had an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity.

The Court said that the information sought by the defendant regarding the plaintiff’s Facebook and MySpace accounts is both material and necessary to the defense in this case and/or could lead to admissible evidence. To permit a party claiming substantial damages for loss of enjoyment of life to hide behind the nonpublic portion of a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.

The Court continued by stating that production of the plaintiff’s entries on her Facebook and MySpace accounts would not violate her right to privacy, and any concerns for her privacy are outweighed by defendant’s need for the information. New York courts have yet to address whether there exists a right to privacy regarding what one posts on their on-line social networking pages such as Facebook and MySpace. However, whether one has a reasonable expectation of privacy in internet postings or e-mails that have reached their recipients has been addressed by the Second Circuit, which has held that individuals may not enjoy such an expectation of privacy (citing US v Lifshitz, 369 F3d 173 (2nd Cir 2004)). Further, neither Facebook nor MySpace guarantees complete privacy, and warn that any posted material may become public. As such, the Court granted the defendant the order it requested giving the defendant access to the plaintiff’s nonpublic Facebook and MySpace accounts and pages.