Romano v Steelcase Inc.
Case/Rule Name: Romano v Steelcase Inc., 2010 NY Slip Op 20388, 1 (N.Y. Sup. Ct. Sept. 21, 2010).
Summary: In this personal injury action, the defendant sought access to the "[p]laintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life."
Though the plaintiff allegedly claimed that she sustained permanent injuries the public portions of her MySpace and Facebook revealed that she was leading an active lifestyle.The Court noted, "[b]oth Facebook and MySpace are social networking sites where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking.
Indeed, Facebook policy states that 'it helps you share information with your friends and people around you,' and that 'Facebook is about sharing information with others.' Likewise, MySpace is a 'social networking service that allows Members to create unique personal profiles online in order to find and communicate with old and news friends;' and, is self-described as an 'online community' where 'you can share photos, journals and interests with your growing network of mutual friends,' and, as a 'global lifestyle portal that reaches millions of people around the world.' Both sites allow the user to set privacy levels to control with whom they share their information."
The Court further noted that "[t]he information sought by Defendant regarding Plaintiff's Facebook and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence. In this regard, it appears that Plaintiff's public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed.
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. Preventing Defendant from accessing to Plaintiff's private postings on Facebook and MySpace would be in direct contravention to the liberal disclosure policy in New York State."
After briefly discussing the Stored Communications Act, The Court rejected the plaintiffs argument that her privacy rights would be violated if this information on the sites was released. After reviewing several federal and state court decisions, the Court ordered that the defendant be given access to the different social networking sites.
Sunday, December 5, 2010
The dangers of BCCing your client
Charm v. Kohn
Case/Rule Name: Charm v. Kohn, 27 Mass. L. Rep. 421 at *5-6(Mass. Super. Ct. 2010).
Summary: In a contractual dispute, defendant's counsel sent an e-mail to opposing counsel and blind copied (bcc) his client. His client than proceeded to respond to the e-mail and sent it using the "all reply" function which sent a copy of his privileged communication to opposing counsel.
Defendant's counsel immediately sent a request to opposing counsel to delete the privileged e-mail, but counsel refused to do so. This was the second time this had happened. The Court felt the question was close but refused to find waiver in the case but issued a warning for any future disclosures.
The Court stated, "[o]n balance, and perhaps with some indulgence for human fallibility, the Court finds that Kohn [defendant] has met his burden of showing that he took reasonable (although not maximum) steps to preserve the confidentiality of the particular communication in issue. The Court will therefore allow the motion to strike, and will preclude further use of the e-mail. Kohn [defendant] and his counsel should not expect similar indulgence again.
They, and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver."
Case/Rule Name: Charm v. Kohn, 27 Mass. L. Rep. 421 at *5-6(Mass. Super. Ct. 2010).
Summary: In a contractual dispute, defendant's counsel sent an e-mail to opposing counsel and blind copied (bcc) his client. His client than proceeded to respond to the e-mail and sent it using the "all reply" function which sent a copy of his privileged communication to opposing counsel.
Defendant's counsel immediately sent a request to opposing counsel to delete the privileged e-mail, but counsel refused to do so. This was the second time this had happened. The Court felt the question was close but refused to find waiver in the case but issued a warning for any future disclosures.
The Court stated, "[o]n balance, and perhaps with some indulgence for human fallibility, the Court finds that Kohn [defendant] has met his burden of showing that he took reasonable (although not maximum) steps to preserve the confidentiality of the particular communication in issue. The Court will therefore allow the motion to strike, and will preclude further use of the e-mail. Kohn [defendant] and his counsel should not expect similar indulgence again.
They, and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver."
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