In Romano v. Steelcase, 907 N.Y.S.2d 650 (Sept. 21, 2010), an individual litigant's right to privacy in nonpublic portions of social media websites came face-to-face with the opposing party's right to discovery. In this case, the defendant sought access to the plaintiff's current and historical Facebook and MySpace pages and accounts. The plaintiff argued that the Stored Information Act protected information not readily accessible on the public portion of the sites because the act prohibits the social networking sites from disclosing any private information without the consent of the owner of the account.
The court granted the defendant's motion, including any deleted pages and related information, relying on a liberal interpretation of the "material and necessary" discovery standard, the public policy favoring open disclosure, and the absence of expectation of privacy when using social media.
At first blush, this decision is nothing but good news for corporate litigants, particularly those faced with product liability or other personal injury claims, as it signals a willingness by courts to provide free access to the increasingly prevalent information available on social media websites and applications. It is clear from the court's decision in this case that any such information is fair game if the information is potentially relevant, even if it is not generally available to the public. Thus, in-house counsel should ensure that trial counsel seek discovery of information available about an individual plaintiff's use of social media and is aware of the precedent allowing disclosure of even nonpublic information from such sources.
There are corollary messages that are of equal importance, however. The social media discovery sword has at least two edges. First, counsel must consider whether social media may be an issue for any of its own witnesses. As part of internal investigations, companies may need to find out what potentially relevant information might exist on an individual witness's social media sites, and the trial team must properly prepare witnesses for depositions, hearings and trial. It only takes one statement to turn a confident witness into a liability.
In addition, more and more companies are leveraging social media for marketing purposes. Social media sites are the modern extension of magazine and television advertising, and very few companies concerned with public exposure will fail to take advantage of these increasingly important media outlets. Of course, that means one more source of potentially relevant information exists about the company in appropriate cases. It is important, therefore, for in-house counsel to be aware of and involved in decisions about social media marketing. Far more fast-paced than traditional types of advertising, social media are constantly changing, necessitating much faster response times when information must be preserved. Corporations using social media should take steps to ensure that these sources of information are included in their discovery response plans.