Social Media Advisor – If You Can Run, You Still Can’t Hide

Another court has issued a decision that continues one social media trend:   Despite what the terms of conditions may say for an employee’s social networking site, and despite what the employee’s own expectations may be, the “private” postings of an employee who has affirmatively raised certain issues in a lawsuit will be fair game.

So said a Judge in the New York Supreme Court for the County of Suffolk, this time in a case entitled Romano v. Steelcase, Inc.    In that case, the plaintiff claimed that she fell off an allegedly defective desk chair while working at a university.   She later sued various entities for significant injuries, claiming that she had “consequential loss of enjoyment of life.”   The defendant served a notice on plaintiff’s attorney seeking authorization to obtain access to and copies of all of the plaintiff’s private records and information from her Facebook and MySpace accounts after having already obtained information from the public portions of her profiles that appeared to belie plaintiff’s claims that she was unable to lead an active lifestyle and engage in physical activities.

Rejecting plaintiff’s opposition on the basis of privacy rights, the court found that plaintiff had put her private activities in controversy by claiming damages for her alleged injuries in her lawsuit. Notably, the court held that refusing access to private postings “not only would go against the liberal discovery policies of New York favoring pretrial disclosure, but would condone plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

Employer Take Away:   What should you as an employer take away from this development?   

(1)        Continue to take advantage of the trend toward liberal access to and discovery of an employee’s private postings when you are involved in a lawsuit with that employee.   The Romano decision is the latest example of a court’s refusal to place privacy notions in the social media context ahead of traditional notions of a free and unfettered right to the exchange of information in civil litigation. You should, however, also be sensitive to the fact that such liberality is a two-way street, and that an employee might be able to similarly persuade a court that he or she should be entitled to gain access to and use private postings from officers or managers of your company for issues relevant to claims in a pending lawsuit.

(2)        When asking a court to allow access to an employee’s private information, make sure the request is narrowly tailored and reasonably related to the lawsuit itself.   The decision in the Romano case suggests that the Judge was persuaded that the defendant made a sufficient showing that private postings may reveal relevant information based on what was already discovered through the employee’s public profile information.     All judges might not be sympathetic to a boilerplate form request, or an overbroad request asking for the moon and the stars based on nothing more than speculation that something may exist that would help the defense.   Thus, it is wise to demonstrate an appropriate connection between the issues raised in your particular lawsuit on the one hand, and the need for access to the private information being sought on the other.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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