Court orders in camera review of injured plaintiff’s Facebook content

Richards v. Hertz Corp., — N.Y.S.2d —, 2012 WL 5503841 (N.Y.A.D. 2 Dept. November 14, 2012)

Plaintiff sued defendant for personal injury. Defendant saw a photo plaintiff had publicly posted on Facebook of herself skiing. When defendant requested plaintiff to turn over the rest of her Facebook content (presumably to find other like-pictures which would undermine plaintiff’s case), plaintiff sought a protective order. The trial court granted the motion for protective order, but required plaintiff to turn over every photo she had posted to Facebook of herself engaged in a “sporting activity”.

woman skiing

Defendants appealed the entry of the protective order. On review, the appellate court reversed and remanded, finding that defendants had made a showing that at least some of the discovery sought would result in the disclosure of relevant or potentially relevant evidence.

But due to the “likely presence” of private and irrelevant information in plaintiff’s account, the court ordered the information be turned over to the judge for an in camera review prior to disclosure to defendants.

Whether the plaintiff effectively preserved her Facebook account information may be an issue here. The facts go back to 2009. One is left to wonder whether and to what extent plaintiff has not gone back and deleted information from her account which would bear on the nature and extent of her injuries. It goes to show that social media discovery disputes can take on a number of nuances.

Photo courtesy Flickr user decafinata under this Creative Commons license.

Employee’s Facebook status update was protected by the First Amendment

Mattingly v. Milligan, 2011 WL 5184283 (E.D.Ark. November 1, 2011)

Plaintiff worked in the county clerk’s office. Her old boss, whom she had supported in the election, lost. Her new boss (the newly-elected county clerk) began cleaning house and laid off some of the staff. Plaintiff survived that round of cuts, but lamented those terminations in a Facebook status update. Empathetic comments from county residents ensued.

The new boss found out about the status update and the comments. So he fired plaintiff. She sued, alleging that the termination violated her right to free speech. The boss moved for summary judgment, but the court denied the motion, sending the case to trial.

Here is some of the relevant Facebook content:

Plaintiff’s status update: So this week not going so good bad stuff all around.

Friend’s comment: Will be praying. Speak over those bad things positively.

Plaintiff’s comment: I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed…. It’s sad.

* * *

Friend’s comment: He’s making a mistake, but I knew he would, too bad….

* * *

Friend’s comment: I can’t believe a letter would be the manner of delivering such a message! I’m with the others…they will find some thing better and tell them this is an opportunity and not a closed door. Prayers for you and friends.

* * *

Friend’s comment: How could you expect anything else from [defendant], he was an…well nevermind.

Courts addressing claims by public employees who contend that they have been discharged for exercising their right to free speech must employ a two-step inquiry: First, the court must determine whether the speech may be described as “speech on a matter of public concern.” If so, the second step involves balancing the employee’s right to free speech against the interests of the public employer.

In this case, the court found the speech to be on a matter of public concern because:

  • the statements were made in a “public domain”
  • those who saw the statements (many of whom were residents of the county) understood them to be about terminations in the clerk’s office
  • some of the comments contained criticism of the termination decision
  • six constituents of the new clerk called his office to complain
  • the press and media had covered the situation

As for the second step in the analysis, namely, balancing the employee’s right to free speech against the interests of the public employer, the court did not even undertake a balancing test, as there simply was no evidence that the status update and the comments disrupted the operations of the clerk’s office.

Court dismisses unfair competition claim against Facebook over alleged privacy violation

This is a post by Sierra Falter.  Sierra is a third-year law student at DePaul University College of Law in Chicago focusing on intellectual property law.  You can reach her by email at sierrafalter [at] gmail dot com or follow her on Twitter (@lawsierra).  Bio:

In re Facebook Privacy Litigation, 2011 WL 2039995 (N.D.Cal. May 12, 2011)

Plaintiff Facebook users sued defendant Facebook for violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq., alleging that Facebook intentionally and knowingly transmitted personal information about plaintiffs to third-party advertisers without plaintiffs’ consent.  Facebook moved to dismiss the UCL claim.  The court granted the motion.

Defendant argued that plaintiffs failed to state a claim because they lacked standing under the UCL, since they did not allege they lost money or property.  Defendant asserted there was no such loss because plaintiffs’ “personal information” did not constitute property under the UCL.

Instead, the plaintiffs had alleged that defendant unlawfully shared their “personally identifiable information” with third-party advertisers.  However, the court distinguished the plaintiffs’ claim from Doe 1 v. AOL, LLC, 719 F.Supp.2d 1102 (N.D. Cal. 2010).  In that case, the plaintiffs’ personal and financial information had been distributed to the public after the plaintiffs therein signed up and paid fees for AOL’s service.  The court dismissed plaintiff’s claim in this case under the holding of Doe v. AOL — since plaintiffs alleged they received defendant’s services for free, they could not state a UCL claim.

Court throws out Facebook’s lawsuit against

Case dismissed because federal court in California did not have personal jurisdiction over Illinois resident.

Facebook, Inc. v., LLC, 2011 WL 1672464 (N.D.Cal. May 3, 2011)

Last year Facebook made us wonder if it had gone off its meds when it filed a trademark infringement lawsuit against Illinois-based More than one commentator thought Facebook was being overzealous in its efforts to claim exclusivity in the term “book” for social networking services.

However one contenances the action, the court has shut the cover on the first chapter. The U.S. District Court for the Northern District of California (where Facebook is located) held that it lacked personal jursidction over the Illinois defendant. So it dismissed the case.

Applying the well-known “effects test” from Calder v. Jones, the court found that Teachbook had not expressly aimed its conduct into California:

Teachbook does not register users in California. Thus, even if Teachbook intended to compete with a California company, it intended to compete for users who were not in California. The fact that an essentially passive Internet advertisement may be accessible in the plaintiff’s home state without “something more” is not enough to support personal jurisdiction in a trademark infringement suit brought in the plaintiff’s home state.

So if the fight continues, it won’t take place in Facebook’s back yard.

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