Court Quotes Mark Zuckerberg’s Opinion Of Where Privacy Is Going On The Web

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Fawcett v. Altieri, et al, No. 100008-12, (N.Y. Sup. Ct., Richmond County January 11, 2013).

Since this blog’s inception we have frequently posted about the discovery of social media content; however, it is rare, indeed, when a decision we review cites to the opinion of a social media website’s chief executive office.

In Fawcett v. Altieri, the plaintiff, a high school student, sought damages for injuries allegedly sustained from an altercation with the defendant[s]?, another high school student[s]?, during a tennis match. During the course of the litigation the defendants demanded social media content including:  “. . . authorizations to permit the defendants to obtain full access to and copies of Plaintiff’s current and historical records and/or information and photographs on plaintiff’s social media website pages. . .” The defendants contended that the court should compel the Plaintiff to turn over the social media content because it has “been made private with no information available for public consumption.”

In deciding the motion to compel, the court referred to an interview with Mark Zuckerberg on the popular website TechCrunch in which Zuckerberg explained his opinion as to “where is privacy on the web going?”  In the interview, Zuckerberg stated that “. . . [p]eople have really gotten comfortable not only sharing more information and different kinds, but more openly and with more people.  That social norm is just something that has evolved over time.” The court agreed with Zuckerberg that “members of society continue to share more of their thoughts, secrets, mundane musings, photos and videos of their personal lives on social media sites.”

The court, however, did not agree that society’s willingness to share personal information on line made fair game in discovery of every social media website posting or that content should automatically be turned over to the opposing side during litigation.  More specifically, the court ruled that  some good faith basis is required before disclosure will be ordered:

[t]he party requesting the discovery of an adversary’s restricted social media accounts should first demonstrate a good faith basis to make the request.  Absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant’s social media records is tantamount to a costly, time consuming “fishing expedition,” which the courts ought not condone.  Moreover, asking courts to review hundreds of transmissions “in camera” should not be the all purpose solution to protect the rights of litigants.  Courts do not have the time or resources to be the researchers for advocates seeking some tidbit of information that may be relevant in a tort claim.

Further, the court noted that “[a]s a matter of judicial policy, such a fishing expedition is not a sufficient basis to open the flood gates of meandering thoughts or silly postings to be used to impeach a party in a simple assault or negligence action without any good cause to believe that any incriminating statement was ever made and publicized in the social media.” Therefore, a party requesting private social media content must demonstrate with “some credible facts” that the other party has posted content “relevant to the facts of the case at hand.” In the case at hand, however, the court held that the defendant failed to do so and ruled that the parties “should proceed to discover the facts of the case by way of depositions or other investigatory or surveillance means.”

If you or your company has any questions or concerns regarding the discovery of social media content, or any other e-discovery related questions, please e-mail Justin F. Capuano at jcapuano@cullenanddykman.com or call him at (516) 357-3708.

A special thanks to Sean R. Gajewski, an associate at Cullen and Dykman LLP, for help with this post.