New York Construction Case Makes Privacy Holding
Posted on Sun, Nov 27, 2011
A recent holding of the First Department of the Appellate Division prevented discovery of a plaintiff’s Facebook page, but not for reasons supporting the plaintiff’s selected Facebook privacy settings.
This New York construction litigation matter began when the plaintiff claimed numerous injuries suffered in a personal injury action against Turner Construction Company. In response, the defendant sought to use plaintiff’s account to establish the plaintiff was misrepresenting his claimed injuries.
It is becoming more common in workman’s compensation and personal injury litigation matters for attorneys to seek the use of a party's own Facebook page contents and postings as evidence to disprove the severity of injuries claimed.
A 2010 New York State Supreme Court, Suffolk County matter where a woman claimed to be bedridden after suffering an injury was found standing and smiling in Facebook posted photographs. The injured woman was ordered to provide the defense with access to the private portions of her Facebook account.
“The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access … just as relevant matter from a personal diary is discoverable.”
This prior rationale was cited by Justice Jeffrey Onig in his October 27, 2011 order preventing full access to the plaintiff’s Facebook account by Turner Construction Co.
“[W]e reverse and remand for a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”
On appeal, the request to obtain Facebook information, otherwise protected by the account holder’s privacy settings, was denied not for the privacy settings, but for the request itself being worded overly broad. If the request itself was more specifically tailored to obtaining specific information, it is likely that this request would have been supported by the court.
This recent ruling by the Appellate Division signals that Courts, when considering discovery requests in litigation, are not limited or even effected by the Facebook account holder’s security preference settings. Although these settings may be enough to prevent viewing by some, when a party to litigation those privacy settings may serve little to no benefit when trying to keep such information out of litigation, if the information sought is relevant to the legal action.
A full copy of the decision and order of the Supreme Court, Appellate Division can be found here.
This recent ruling comes amid other debates relating to social media and privacy. Aside from this ruling, Facebook itself has recently enlarged the amount of information that is considered public by default, including the use of an auto-tagging facial recognition feature. This feature has been controversial and in Germany is under investigation for being a violation to that country’s privacy laws.
The threat posed to privacy by these social networks and the expanding realm of public information goes beyond what these networks themselves do, and the question becomes what others are enabled to do with the information.
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The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.