Sep 24 2010

In Court? Be Careful What You Post!

Litigants in a court case beware! Your adversary may be allowed to view all of your postings, including private and deleted ones, if they bear any relation to the court case.  In the first case of its kind yesterday, a Suffolk County NY Judge, in Romano v. Steelcase, Inc., allowed a defendant in a personal injury lawsuit to obtain access to the Facebook profile of the plaintiff suing them.  The court held that since the plaintiff put her physical health at issue by suing, she could not restrict the defendant from obtaining evidence that might support or contradict her claims.  Supreme Court Judge Allen Spinner  reasoned -I think completely correctly – that social networking sites are not private lockboxes where you store your most intimate secrets; in fact their privacy policies tell you that they are public spaces.  Therefore he said:

“Plaintiff has no legitimate reasonable expectation of privacy.”

Already, the news has printed stories about people arrested in DWI cases who post FB pictures showing them continuing to drink and live a party lifestyle. Earlier this year, a 17 year old Buffalo NY woman who was going to receive probation after getting into a DWI accident that killed her boyfriend was instead sentenced to 6 months in jail because the judge was angered that she posted a FB pic a month after the accident showing her with a drink in her hand and captioned “Drunk in  Florida.”

What Would your adversary like to know?

And a South Carolina man had his bail bond revoked in a DWI case when the victim’s family found FB pictures of him on an out of state Spring Break trip when that violated the terms of his bond.  In a case of my own in Nassau County, NY, I successfully defended a young man on a kidnapping and assault charge by showing that the allegedly frightened and meek victim had numerous pictures of himself on MySpace holding handguns and semi-automatic weaponry, including an Uzi and an AK-47, making our defense of self-defense more credible.

What’s important about the Romano case is that the plaintiff was ordered to provide access not only to the private information on her FB profile but also to deleted pages, meaning that those of you with a court case who are going to delete certain photos and posts may not be safe as your adversary may get those deleted sections as well.  There is no doubt that in civil, criminal and especially matrimonial cases, lawyers will be demanding the turnover of this material. Folks who are litigants in court cases need to be mindful of this new exposure of your private life. They should pay attention to Judge Spinner’s words:

Given the millions of users,  in this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.

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