Facebook Private Posts Can Be Subpoenaed in Medical Lawsuit

Paula Duffy's picture

A woman in New York has lost her court motion to keep her private posts on Facebook and My Space from being subpoenaed in a civil law suit. The judge ruled that in a lawsuit alleging physical injuries, the defendant is entitled to review information posted on social media sites, no matter the level of privacy settings.

Kathleen Romano sued Steelcase, Inc. who manufactured the chair and Educational & Institutional Cooperative Services Inc., who she believes is the distributor of the piece of office furniture. She claims in her personal injury lawsuit that the chair she sat on was defective and caused her to fall and incur what she calls "serious permanent personal injuries."

The legal website, law.com reported that a Suffolk County, New York judge ordered Ms. Romano, Facebook and My Space to allow access to the relevant text and photos posted on her personal pages. In his decision, Acting Justice Jeffrey Arlen Spinner wrote: "In light of the fact that the public portions of Plaintiff's social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action."

Judge ruled defendants can contradict injury and disability claims using Facebook private posts of plaintiff

Romano's court filings used the argument that the defendants are engaged in what she called a fishing expedition, without any real basis. Since no one really knows what information is in her private posts, the judge is dealing in the realm of speculation about what might be there. Bulletin to Ms. Romano and her legal team: that is what the process of litigation discovery uncovers - what might be there.

Facebook filed objections to the motion centered on the fact that they shouldn't be put in the middle of the legal wrangling between the injured Ms. Romano and the companies who might be liable. It also used the language of the federal Stored Communications Act which prevents them from "producing a non-consenting subscriber's communications even when those communications are sought pursuant to a court order or subpoena."

In the court's written decision, Justice Spinner likened the situation to the requirement that personal medical records, which are also governed by privacy statutes, must be produced if the injured party has put specific medical conditions at issue. In other words, you can't sue for thousands or millions, claiming you have a disability and not allow the other side to counter your arguments.

We've all seen television dramas centering on court cases where private investigators take photos or video of a plaintiff that contradicts the claims of his or her medical condition. Now it applies to Facebook postings. Posters: beware.

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