In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (2010), a New York trial court judge has ordered the defendant to grant the plaintiff access to defendant's social networking accounts, including deleted materials. Plaintiff brought a personal injury action against the defendant claiming damages related to her loss of enjoyment of life following her injuries. Defendant moved the court for an order granting it access to Plaintiff's current and historical Facebook and MySpace pages and related information upon the grounds that Plaintiff placed certain information on the social networking sites which were inconsistent with her claims concerning the nature and extent of her injuries, especially her claims for loss of enjoyment of life.
The court began with an analysis of discoverability and relevance, noting that "Plaintiffs who place their physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action." Romano, 907 N.Y.S.2d at 652 (citations omitted). Because the Plaintiff claimed damages for loss of enjoyment of life, she should not be permitted to "hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives." Romano, 907 N.Y.S.2d at 655 (citations omitted). A review of the limited public postings on Plaintiff's Facebook and MySpace pages led the court to believe that her private pages may contain materials and information that are relevant to her claims or that might lead to the disclosure of admissible evidence. Accordingly, the court held that denying the Defendant access to those private pages would contravene New York's liberal discovery policies, which favor pre-trial disclosure, and condone Plaintiff's attempt to hide relevant information behind self-imposed privacy settings.
The court ended with an analysis of the Plaintiff's privacy concerns, concluding that the production of Plaintiff's Facebook and MySpace postings, even those marked as private, would not be violative of her right to privacy. Any such concern would also be outweighed by Defendant's need for the information contained on the Plaintiff's private Facebook and MySpace pages.
Because "neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy." Romano, 907 N.Y.S.2d at 656. When creating her Facebook and MySpace accounts, Plaintiff consented to the fact that her personal information would be shared with others; therefore, she cannot now claim that she has a reasonable expecation of privacy in that information. "In this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking." Id. (citing Dana L. Flemming and Joseph M. Herlihy, Department: Heads Up: Waht Happens When the College Rumor Mill Goes Online? Privacy, Defamation and Online Social Networking Sites, 53 B.B.J. 16 (January / February 2009).
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