By Katie Siemont
Grancell, Lebovitz, Stander, Reubens and Thomas

As of July 2010, Facebook had over 500 million active users and Twitter users are recording over 55 million tweets a day. Internet social networking sites such as Facebook, MySpace, LinkedIn and Twitter, allow users to post content, such as photos or videos, and share information through posting comments or sending email and chat messages. The sites provide four levels of privacy, set by the user. Electronically stored information (ESI) is discoverable if it relates to the issues in the litigation.

The first and most restricted privacy setting allows only specific people to view the content on a user’s account (such as an email sent from one person to another). The second level allows the user’s friends and contacts access to the user’s information, and the third level allows access to secondary friends and contacts. The fourth level is public access. The fourth and third levels are likely discoverable as the electronically-stored information is available to others the user may not even know, so there is little expectation of privacy. The second level and first level have greater expectation of privacy since the user restricted access.

The site user holds the privacy right, not the operator of the website. The Federal Stored Communications Act (SCA) prohibits site operators from “knowingly divulging … the contents of a communication while in electronic storage” or “which is carried or maintained on that service.” 18 U.S.C. §2702(a)(1),(2). The statute was drafted in 1986, predating much of the social networking industry. The SCA intended to address electronically-stored information on business computers, but court decisions are divided on its application to social networking media. Courts have placed the burden of disclosure on the user rather than the site. Facebook’s privacy policy states: “Parties to civil litigation may satisfy discovery requirements relating to their Facebook accounts by producing and authenticating contents of their accounts and by using Facebook’s "Download Your Information" tool, which is accessible through the "Account Settings" drop down menu.”

Courts will weigh the user’s privacy interest in the content of the information against the requestor’s need to obtain the information. For example, posting photos of drug and alcohol use would be highly relevant in a child custody case, and deemed not as relevant in a workers’ compensation case involving a purely orthopedic injury, given the interests involved. Courts have also looked at the privacy policies of the sites themselves, which often state that they do not guarantee the privacy of the information shared.

There are a handful of cases addressing discovery of social networking site information:

EEOC v. Simply Storage Mgmt., LLC, No. 09-1223 (S.D. Ind. May 11, 2010), a federal court allowed disclosure of an employee’s social networking activity despite privacy settings restricting public view. The EEOC sued Simply Storage for sexual harassment of two employees. The Court in Simply Storage ordered the production of any content from Facebook or MySpace that could reasonably relate to the plaintiffs’ mental or emotional state.

Romano v. Steelcase, 2010 NY Slip Op 20388 [30 Misc 3d 426] was a New York case in which a claimant sued a chair manufacturer after her chair collapsed at work, resulting in injuries which she claimed left her house-bound and restricted her ability to fully enjoy her life. The Court allowed defendants to obtain her Facebook and MySpace postings which showed her on numerous trips. The New York court found that social networking postings did not fall within the SCA because they were not private communications.

In Crispin v. Christian Audigier Inc., CV 09-09509-MMM-JEMx (C.D. Cal. May 26, 2010) 9th Circuit, California, an artist sued an apparel company for using his designs in a manner he claimed exceeded their licensing contract. He sought the apparel company’s MySpace and Facebook information to prove that his artwork was used without permission. Crispin issued discovery requests directly to Facebook and MySpace. The Court denied these requests, holding that the SCA prohibited the sites from disclosing
private electronic communications, even in response to a civil subpoena. Because the defendants had communicated on these social networks using private accounts, federal law protected the messages. The ruling in Crispin is significant because it held that the Stored Communications Act applies to online social media networks like Facebook and MySpace
when they receive discovery requests.

Can you “Friend” an injured worker to see what they are posting on social networks as part of an investigation?

Sending a “friend request” to an injured worker is questionable practice and likely would be fact determinative to see if it breached limits on claim investigation, namely, no entrapment, fraud, or deceit. To date, no case law guidance has issued. California Civil Code 1708.8, known as the “Anti-Stalking Statute” has an exception for actions “supported by an articulable suspicion, [including] attempts to capture any type of visual image, sound recording, or other physical impression of a person during an investigation, surveillance, or monitoring of any conduct to obtain evidence of ... a suspected fraudulent insurance claim.”

Can you search for an injured worker on social networking sites and print out what you find there?

Yes. If you take no further action than to seek public information, or information which is accessible on other user’s sites (i.e. ‘friends of friends’ access), the user likely has no reasonable expectation of privacy. You cannot obtain the information from the site operator through a third party subpoena, however, under Crispin. The appropriate action would be to request the information directly from the claimant via a written release after a reasonable suspicion is articulated.

Katie Siemont is an attorney in the Greater San Francisco office of Grancell, Lebovitz, Stander, Reubens and Thomas. This column was reprinted with the firm's permission from its quarterly newsletter.