Facebook and other social media have become essential tools for attorneys across practice areas. Attorneys in almost every field are turning to such sites for client development. Litigators are mining social media for information when selecting juries and impeaching experts. Family law attorneys seek out personal information about their adversaries’ spending, dating and parenting habits. Attorneys general have subpoenaed social networking sites to discover whether registered sex offenders are using the sites for illicit purposes. And plaintiffs’ social network profiles are figuring prominently in tort litigation.
Courts in numerous jurisdictions have ruled that personal injury plaintiffs’ profiles and postings—whether designated public or private, whether active or deleted—are discoverable. Social networking sites appear poised to play an important role in products liability litigation by allowing defense counsel to get to know plaintiffs—quickly, inexpensively and perhaps better than ever before.
As yet, no New Jersey decision has addressed in depth the issue of whether social media profiles and postings are discoverable. However, other jurisdictions have addressed the issue and for the most part have ruled against tort litigants who have attempted to protect their online profiles and postings on the basis that such information and communications are private. Privacy in social networking is—in the words of one New York court—“wishful thinking.”
