Court Says Personal Injury Plaintiff Has To Give Defendant Access To Facebook & Myspace Info
from the privacy-schmivacy dept
A woman who sued office furniture company Steelcase after claiming serious injuries after falling off a Steelcase chair has been told by a judge that she needs to give Steelcase access to private Facebook and MySpace postings, as the company claims that the publicly available information contradicted her claims of injury and harm. Steelcase noted that what could be seen publicly:"reveal[ed] that she has an active lifestyle and can travel and apparently engages in many other physical activities inconsistent with her claims in this litigation." For example, Steelcase said Romano's public profile on Facebook depicted her "smiling happily in a photograph outside the confines of her home despite her claim that she ... is largely confined to her house and bed."Because of this, Steelcase claimed it should get access to the private parts of her MySpace and Facebook accounts as part of the discovery process. Facebook actually jumped in at this point to side with the woman, noting that handing over info on the woman's profile would like violate the Stored Communications Act. MySpace did not bother to get involved to protect its user (does anyone still even work there?).
The judge, however, felt otherwise, and ordered that the information be turned over, saying that it was "reasonable to infer from the limited postings on Plaintiff's public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence." I do understand the basic reasoning, but it does seem troubling, as there may be plenty of other private information that's revealed in this manner.
The judge's Fourth Amendment analysis is also troubling. He pointed out that both MySpace and Facebook warn users that content they post may be seen by others -- and, from that, concludes that there's no expectation of privacy:
"Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites or they would cease to exist,"That seems to be taking the terms of service out of context however, and seems like really questionable reasoning. Just because some info could be seen by others, does not mean that all info is considered available to the public with no expectation of privacy.
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Filed Under: 4th amendment, personal injury, privacy, social networks
Companies: steelcase
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Both sides
That being said, I think the plaintiff would have been off adding a comment to the effect of "The public profile represents an image the plaintiff wanted to project to friends and is not necessarily the full truth". I don't know about everyone else, but there have been a few times I've been more upbeat online than I've been in real life.
I also think the plaintiff's case could have been helped with an explanation of the specific elements that SteelCase was pointing out. For example, in 2006, I ruptured one of my Achilles tendons. For the next 3 months, it was wheelchairs and crutches if I wanted to go anywhere. In the photos from the time that show me active, what is not shown is the wheelchair that was moved out of frame, my leg in a cast/hard boot below the bottom edge of the photo, the Advil/Percocet that I was taking to deal with the pain, etc. The plaintiff's public profile represents a "sanitized" image she may be presenting so that she doesn't come off as a whiner/near invalid all the time.
I'm torn on this one. I think in the end, I'll reserve my outrage because I feel Steelcase has a right to full disclosure in order to defend themselves and they've at least presented a prima facie case for the need. Ultimately, I think I see this more as a failure of the plaintiff's attorney to properly litigate the case.
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Re: Both sides
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Re: Both sides
That is an excellent point. I don't have a problem with the profile, even the private parts, being used for discovery, but I don't think that everything expressed there should automatically be assumed to be true; heck, I'm not even sure that "Internet" sources should even necessarily be admissible due to the flexible(alterable) nature of digital information. I don't think courts should even accept photographs as evidence anymore unless they have a "photoshop" analyst that is willing to state under oath that a picture has not been altered.
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Re: Both sides
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so silly
"Thus, when Plaintiff had her phone conversation with Bob, she consented to the fact that her personal information would be shared with others [namely Bob]. Indeed, that is the very nature and purpose of a phone."
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Re: so silly
If the plaintiff is trying to block the evidence that has already been discovered on her profile and subsequently the evidence that could be discovered through her private profile, then I think the judge's reasoning is sound. For example if they made a fake user, friended her, gathered information, and are asking for more ... I'm not sure thats any different than private detective work.
A concern I have always had about "social networking" (going back to the days of livejournal) is that people, especially passive-aggressive types, like to claim that this is "their private diary" or "just something for themselves" but it isn't. Once you publish something, I think privacy becomes a lot more complicated. I think of e-mail as private, and phone conversations, but Facebook doesn't really pass the laugh test when it comes to privacy. If anything Facebook is intended to make the details of your private life public; it's part of our "LOOK AT ME" culture.
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Re: Re: so silly
If I show a photo to 100 of my friends, have I made it public? No, I've revealed it to a specific group of persons that I wanted to reveal it to, not the public.
If I happen to show those friends the photo using Facebook, it doesn't magically change things because it's on a computer. Facebook provides the ability to broadcast to the public, but that is not relevant to a user who is not broadcasting to the public.
In this case, they have things she made things publicly available which lead them to hope she may have also made things privately available that would help their case. Through my limited understanding of the discovery process, this is probably reasonable. However, Facebook is in no way a special case- whatever she posted on Facebook should be provided the same privacy protections as any other private communications using some other method. That is to say, if she made a status post only visible to her 257 friends, it should be treated identically to if she sent an email to those same 257 friends.
The judge bringing up Facebook warnings is a red herring that shows the judge is not on solid logical footing.
The best part is "notwithstanding her privacy settings". So the judge is clearly aware of the fact that the privacy settings exist, but has arbitrarily chosen to ignore them (presumably because they contradict his a priori conclusion?).
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Re: Re: Re: so silly
In many cases displaying something to a group or communicating something to a group of people reduces your expectation of privacy. And in almost all cases documents are considered fair game in civil proceedings unless you seek specific protections (or the document is protected under some other law.) As to whether you agree with the law ... thats another matter.
We're not talking about the police breaking down her door, we're talking about someone voluntarily filling (what i'll assume is a frivolous) lawsuit and then balking when they realize that the defense has a right to evidence which the plaintiff has chosen to publish and share with third parties (including Facebook, after all she "shared" the photo with them.)
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Re: Re: Re: Re: so silly
Facebook users acknowledging that the platform can be used to broadcast publicly is likewise not granting any sort of consent for their private information to be broadcast publicly.
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how discovery works
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Sounds like normal discovery to me
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Re: Sounds like normal discovery to me
I think the argument is, "Are Facebook (or any social network) messages privileged documents."
I myself wonder if the Steelcase is simply going on a fishing expidition with hopes of finding a smoking gun. Since they already have access to her public information I'm really not seeing why they should be allowed to go through her personal information. But there's 2 things I'm worried about.
1. That Steelcase will expect to (and probably try) simply get ALL of her private information and then go through it at their leisure.
2. That regardless of how this goes down this case may become a "Hey if I twist the wording just right I can get access to anyone's private info." card.
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Re: Re: Sounds like normal discovery to me
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Re: Re: Re: Sounds like normal discovery to me
My facebook profile image is 13 or 14 months old - smiling and happy. That doesn't mean I'm the same today. It means I don't want to get in front of the camera anymore...go figure.
I agree the defendant is entitled to discovery - I don't see that as being an issue at all.
What I see as the issue is people simply assuming a picture of anyone represents their current state - physically or mentally.
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Re: Re: Sounds like normal discovery to me
> social network) messages privileged documents."
I can't imagine why they would be. They don't meet any of the statutorily recognized privileges (priest-penitient, doctor-patient, etc.)
If my private bank records aren't exempt from discovery, why would my Facebook posts be exempt?
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Re: Sounds like normal discovery to me
While a similar situation may have happened before, this specific situation happened just now.
Just because two people get run over by a car at two different points in time, does not make the second time "not news".
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As already stated, part of discovery, you can get access to almost everything.
Same as emails.
Don't put anything in writing, emails, etc, if you don't want it used against you.
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Discovery
That being said, the preferred method, if there is unrelated (i.e. financial data) information in the profile and other content, is an in camera review by the judge, where the judge looks at everything, then releases the relevant portions to the defendant.
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Re:
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this could go either way
personally, i think she is playing the lottery, but i'm usually pretty cynical about people who fall out of chairs.
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Wait a minute...
You're not supposed to stand on chairs (although we all probably have done it from time to time), therefore she was using the chair in an unauthorized manner. If you fall and bust your ass while standing on a chair, especially if it was a swivel/rolling chair, you deserve what you get.
Now, how is Steelcase to blame for that? Oh, I know. They shouldn't be selling chairs that can sense someone standing on it, and in order to free itself of the offending stander, these chairs goes into a wild, uncontrollable roll and swivel, like a bull at a rodeo, causing the offending stander to lose their balance and be thrown unceremoniously to the floor/ground.
This is just like the McDonalds "oh, I spilled your hot coffee on me and burned myself, so it's McDonald's fault, not my clumsy self, so they owe me millions" lawsuit.
Give me a break.
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Re: Wait a minute...
And give me a freaking break on the McDonald's coffee case, that particular McDonald's did wrong, she only wanted her medical expenses paid, move on!
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Re: Re: Wait a minute...
If you're sitting in the chair, and fall, it's because you are leaning it backwards or doing somethine else other than just sitting.. not Steelcase's fault.
If you're standing on the chair, and fall, it's because you lost your balance and hit the floor.. again, not Steelcase's fault.
As for the McDonalds coffee thing.. how was it McDonald's fault? Talk about not knowing the facts. The restaurant didn't spill the coffee on her, she did, by putting the coffee cup between her legs and removing the lid. How the hell is this the fault of the company? I don't blame them for refusing the $20k she wanted. And the idiot jury awarding millions need to be teabagged. That's one big reason all these damn lawsuits started to begin with. "oh, she got away with her own stupidity, what else can we sue for now?"
I'll move no when all these lawsuits stop.
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Re: Re: Re: Wait a minute...
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Re: Wait a minute...
To summarize the McDonalds case:
1. The coffee was ~185 degrees, coffee at home is normally ~135 degrees.
2. McDonalds had 700 insurance claims for coffee burning people in the 10 years proceeding this, many of the claims were very similar.
3. The woman suffered 3rd degree burns (permanent loss of feeling) on 6% of her body because the coffee was so hot; she had to have a skin graft. Also, she was not driving as many have claimed.
4. In discovery, a bunch of information came to light that McDonalds knew the coffee was too hot, knew that people were drinking it immediately when it was served, knew that peoples mouths and throats were sometimes being burned and still decided to keep the coffee hot so it would last longer.
5. The woman only filled a claim for medical bills ~$20,000 but McDonalds took it to court ... where she was awarded almost 3 million in punitive damages to punish McDonalds for its willful neglect, which a judge reduced to 800,000. McDonalds then appealed the ruling and ultimately settled out of court and the details are still a secret.
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This happened in 1992, 20 years ago - long before the Starbucks revolution turned everyone into a "barista."
Just as a side note, 135 degree water is hot, your home hot water heater probably averages around 120 degrees.
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Re: Re: Re: Re: Wait a minute...
120 degrees is not near hot enough to make tea, coffee or even hot chocolate, nor is 135 degrees.
Sorry - not trying to be obtuse, but really...boiling water is how you make hot drinks, unless they are brewed drinks, like in a coffee brewer.
At least in Canada.
It would be interesting to go look up the temps of our favourite coffee shops here...might have to go do that for curiosity's sake :)
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Re: Re: Wait a minute...
otherwise you end up sounding ignorant (which means uneducated, in case you were not aware)
Don't talk down to me like that. You wouldn't win in a battle of wits if I chose to engage in such with you.
And I believe you're not understanding what I'm saying.
I'm all about fault here. It was not the fault of the company that sold the coffee. It's the fault of the person that removed the lid with it between her legs!
She's the reason irons have a warning label that says "Do not iron clothes while wearing" and don't put your hands or other body parts under the mower deck while the blade is spinning.
Just as in this case, falling off a chair, which, to me, and anyone with ANY sense at all, means she was using the chair in an unauthorized manner, puts all fault on the user of said chair.
The ONLY way Steelcase would be at fault is if she were sitting in the chair, using it like it's intended to be used, and the chair failed, causing a fall. That scenario, while possible, I just find to be very unlikely.
Too many people want to blame the maker of a product rather than put the blame where it belongs. No one has accountability anymore.
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Re: Re: Re: Wait a minute...
They just also assigned some blame to McDonalds due to what they perceived as negligence by the company due to the long history of complaints the company had received without taking any sort of steps to try to prevent such things from occurring.
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Talk about letting the flood gates open for prosecutors to go fishing. Just accuse someone one, get this judge, then free sift through everything related to the accused and see what/how/if you can use it.
It is a civil matter but you think you would need at least some level of logic that would indicate that you need that evidence. IE: statements that indicated she posted actives to her face book page that validate your argument. Not just simply saying you would like access to 'see' if there is anything there for us to use.
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Re:
That could be an informal definition of court "discovery".
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Re:
This is a civil lawsuit and the woman can back out any time if her privacy is more important than her desire to one the "broken back bingo" prize.
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Terrorist!
Claim terrorist activities.
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Stealing...
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Discovery
Sue any big company (especially involving some kind of injury) and they'll hit you with subpoenas and motions to produce bank account records, financial statements, medical records, treatment records, even private diaries, notebooks and personal computers. It's all fair game, subject only to a "relevancy" standard, which has traditionally been interpreted very liberally.
Just because things like Facebook and Twitter are relatively new phenomena doesn't mean they aren't subject to the same legal standards as good old fashioned paper records, which arguably are a lot more private in the first place.
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who gets it
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Maybe The Idiots
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What CASE
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Sacramento Personal Injury Attorney
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Steelcase claimed
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Get an Occupational Health and Safety from Worklaw
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Case by Case Basis
In this story, the woman was said to be on Facebook, "smiling happily in a photograph outside the confines of her home despite her claim that she ... is largely confined to her house and bed."
But there may always be more to the story that an insurance company may miss. What if there's advice from the doctor to try and do the best she can? There are many instances where people may have bad and good days. It is not reasonable to expect that someone who has been injured will always be on the verge of suicide because they can never be happy. Consideration of the medical evidence is something that is not really given in this article.
I also think that consideration should also be made to the claim itself. In this case, drafting the statement of claim to incorporate more specific terms of her limitations may have been appropriate (again, with reference to the medical evidence)
On a personal note, I am never a supporter of any entity that seeks to witch hunt through my personal information just to find something that sticks.
Understandably so, I find that a lot of people tend to be emotional when it comes to matters such as this and that is why it is important to be wary of what they say. Sometimes people may exaggerate or miscommunicate something just out of an explosion of feeling.
This was a good article.
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