CalBizLit posted last Wednesday here about renowned attorney Mark Lanier's privacy law suit against Facebook, which was met with the derisive hoots it certainly deserved. But there's a more serious issue about Facebook, MySpace and other social network sites that is important for everyone in the world of product liability and other personal injury litigation. The questions are these: when is the defense entitled to the plaintiff's ostensibly private, or at least restricted, social networking postings, and what is the process for getting them?
More after the jump.
In most serious, and in some not-so-serious personal injury cases, the plaintiff claims emotional distress. It is a common practice in such cases for the defense to find out if the plaintiff has kept a journal, diary or the like, and to demand its inspection on the ground that individuals will have a tendency to record information about things that happen to them that are emotionally significant, as well as record information relevant to their emotional well-being. Although plaintiffs are often not too happy about producing writings they felt were private, I can't recall any court ever ruling that journals and diaries weren't discoverable in a case where there are emotional distress cases. In fact, I can't recall a plaintiff attorney ever seriously contending they weren't discoverable.
But what about social networking posts? To a very considerable extent, these aren't really anything but semi-public diary or journal postings, right? When the plaintiff's emotional status is in issue, shouldn't his or her Facebook and Myspace postings be just as discoverable as his or her journal? And how do you go about getting them? Generally speaking, Facebook postings are visible only to the Facebook member's "friends," (who, sadly, don't usually include defense counsel). While Myspace postings may be public as a default, the Myspace member can also make them private.
The biggest obstacle is federal: the Stored Communications Act, or "SCA," 18 U.S.C. §§2701-2703, which prohibits production of electronically stored communications unless one of three exceptions applies. And the exception we care about here is the one in §2701(c)(2), when the release is authorized "by a user of that service with respect to a communication of or intended for that user." Which means that if you serve a subpoena of Facebook or Myspace, they cannot release the stored communications of your plaintiff, but if you have a signed release or authorization, they can.
That's fine, so how do you get the signed release or authorization? There's nothing in the Discovery Act that requires it. Or is there?
In O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1446, the California Court of Appeal for the Sixth District (that's Silicon Valley, btb) held that
"[w]here a party to the communication is also a party to the litigation, it would seem within the power of a court to require his consent to disclosure on pain of discovery sanctions."
Oh really? Where in the Discovery Act might we find that power enumerated? Oh well. In California, a published decision by a Court of Appeal in any district is binding on every trial court in the state unless there is a conflicting published appellate decision which, in this case, there is not. Auto Equity Sales v. Superior Court (1962) 57 Cal.2nd 450. So the decision in O'Grady is the law in California.
Plaintiffs will typically contend that production of their social networking postings is a violation of their privacy rights, and privacy is a Constitutionally protected right in California. But the right to privacy is not an absolute one, and a countervailing compelling state interest exists in "facilitating the ascertainment of truth in connection
with legal proceedings”. Kahn v. Superior Court (1987)188 Cal. App. 3d 752, 765. A declaration from the defense psychiatrist or psychologist can go a long way toward establishing that the posted information will help ascertain the truth about the plaintiff's emotional status or condition.
And in any event, for social networking users with significant numbers of on-line friends, posting on-line probably waives the claim to privacy. See, e.g. Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1130 (an ode posted on Myspace.com was considered sufficently publicized that the poster waived privacy rights).
So, bottom line: social networking posts may not be private at all; if they are, the privacy right is not absolute, and the defense can overcome the privacy protection by demonstrating their relevance to emotional distress claims; once that is done, the court has the authority to require the plaintiff to sign an authorization or release, and at that point, Facebook, Myspace or whomever will have to respond to a subpoena.
More info on this: U.S. Internet Service Providers Assn., Electronic Evidence Compliance -- A Guide For Internet Service Providers (2003) 18 Berkeley Tech. L.J. 945, 965 ("courts have managed to avoid the issue by ordering the subscriber to give consent to the disclosure of the contens of his or her e-mail.").