JUDGE ORDERS LI WOMAN TO OPEN UP HER FACEBOOK ACCOUNT

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Queens Injury Lawyer)

In the latest reminder that nothing on the Internet is ever truly secret, a Suffolk County judge has ordered a Long Island woman to open up her private Facebook and MySpace postings to a chair company she is suing in a personal injury lawsuit.

In Kathleen Romano v. Steelcase Inc. and Educational & Institutional Cooperative Services, Inc., on September 21, 2010, State Supreme Court Justice Jeffrey Spinner said that Kathleen Romano, who claims she suffered severe back injuries when her chair collapsed while working at Stony Brook University Medical Center, had no expectation of privacy in social media postings that might contradict her injury claims.

"To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information . . . risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial," Spinner wrote.

The judge said his ruling, issued last week, was the first of its kind by a New York court.

Romano's lawsuit claims that a defective Steelcase office chair collapsed when she sat in it in 2003, leading to herniated discs, neck and back pain, and three spinal surgeries. A married mom, she says it has limited her activities and damaged her "enjoyment of life." But material found on her public MySpace and Facebook pages appeared to contradict those claims, Spinner said - including evidence that she "has traveled to Florida and Pennsylvania" and a picture that shows her "smiling happily . . . outside the confines of her home despite her claim that she . . . is largely confined to her house and bed."

The judge wrote that was sufficient basis to allow Steelcase to roam further. He ordered Romano to authorize MySpace and Facebook to turn over all their historical records of her pages - including nonpublic portions of the Facebook site restricted to "friends" cleared by Romano.

Amid cautions given by the sites that they cannot ensure against prying eyes, Spinner said any expectation of privacy is "wishful thinking."

Comment: Somewhat disturbing is that this is "a case of first impression" in New York, meaning that Judge Spinner is the first New York judge to allow a defendant to walk through an accident victim's personal website records. The judge relied on several court decisions from Canada in making his ruling. Why not just let the defendants invade the accident victim's home and take photo albums?

I've seen this kind of privacy assault coming for a long time. First in my blawg of August 25, 2009, where I wrote about video surveillance and also warned about social websites: "Be especially careful if you're an accident victim. Be wary about posting photographs to a website that are inconsistent with your claims of physical limitation."

Then I again wrote about the danger of posting to social networking sites in my blawg of November 26, 2009 where a Canadian insurance company quit paying disability benefits to a depressed claimant because her Facebook postings showed her having fun.

In Romano, Judge Spinner is even letting the defendant into the private parts of the accident victim's social networking websites.

One last point. Defendant's request to access Ms. Romano's Facebook and MySpace records (called, "a motion") was submitted to the Court on July 7, 2009. As noted in the beginning of this blawg, Judge Spinner didn't issue his decision until more than a year later, on September 21, 2010.

Now by Court rules, judges are supposed to decide motions within 60 days of submission. So why the delay?

Something's not right here.