Forensic Update

Reflections on information management within the legal and regulatory arena

Expectation of Social Media Privacy = Wishful Thinking?

Posted by Johnny Lee on September 27, 2010

Wishful ThinkingA few weeks ago, this forum posted an article about an administrative hearing held by the Equal Employment Opportunity Commission (“EEOC”) that dealt with the “discoverability” of information from social networking sites.  In that matter, EEOC v. Simply Storage Management, the Commission held that this information was relevant and discoverable because of the nature of the allegations at issue (namely, that the harm alleged resulted in depression and post-traumatic stress).

We now see this same logic applied to a civil matter in Romano v. Steelcase Inc., wherein the plaintiff’s social networking posts were requested1 in discovery because the plaintiff had specifically alleged that the harm from the defendant caused the plaintiff the “loss of enjoyment of life.”  Just as with the EEOC case, the court approved but limited the defendant’s motion, ordering “there shall be full disclosure of all non-privileged matter which is material and necessary to the defense or prosecution of an action.”  This extended, quite obviously in the court’s opinion, to materials posted to a social networking site that might be indicative of plaintiff’s mental state.

As predicted in our prior post, we expect this sort of discovery request to become a fairly standard arrow in defense counsel’s quiver.  For when mental anguish is alleged, any public statement indicating mental state on a social media site is not only public (therefore accessible) but completely fair game (because it is directly responsive to the matter before the court).

Several things are of interest in this case.  In addition to being an early civil court adaptation of the administrative rule set forth in the EEOC matter, it is important to note that the court must still navigate the granting of discovery carefully here.  Put differently, while the data within these social networking updates are discoverable, the mechanics of acquiring them require the consent of the content-creating party.  The failure to acquire this consent runs the risk of a court battle between the court’s motion to compel and the social networking site’s obligations under the Stored Communications Act2—better all around to have the parties produce their own content.

Also of interest is that this case (much like the EEOC matter) dealt with resistance from the producing party on privacy grounds, though here the plaintiff advanced a Fourth Amendment response to the defendant’s discovery request.  And, just as with the EEOC matter, the court held that such privacy rights are forfeited when the information alleged as private is posted voluntarily to such a public forum.  Leaning on prior case law involving other forms of electronic communication (notably electronic mail), the court equated such a privacy claim as unreasonable and the by-product of a “theoretical protocol better known as wishful thinking.”

1 To review a copy of the actual drafted motion, please click here.

2 For more on the decision in May 2010 that seems to be the first to apply the 1986 Stored Communications Act (18 U.S.C. 2701-11) to data on social networking sites, please see Crispin v. Christian Audigier Inc. (C.D. Calif. May 26, 2010).

 

Case Law Update: Court Orders Production of Plaintiff’s User Names and Passwords for Social Network Accounts @ McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010).  Click here for an excellent write-up of this case from early September 2010.

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