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news: facebook page? or exhibit a in court?

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Title/Topic: Facebook Page? Or Exhibit A in Court?
Posted On: 2/5/2008
Feb 5 2008 (Conde Nast Portfolio) – Facebook pages as potential courtroom evidence? Defense lawyers representing Horizon Blue Cross Blue Shield of New Jersey are pushing the envelope in two pending class actions. They are seeking to hold the insurer liable for its refusal to pay health benefits for anorexia or bulimia of teenagers.

Horizon wants to see all of the online writings, journal and other postings on social networking sights such as Facebook and MySpace “concerning the patients’ eating disorders, symptoms and complaints,” Horizon’s lawyer, Philip Sellinger, wrote in a January 24 letter to the magistrate judge overseeing discovery in the case.

Sellinger continued: “Such documents go to the heart of whether plaintiffs’ eating disorders are biologically based mental illnesses because they will provide a candid assessment of any emotional causes for the plaintiffs’ conditions.”

New Jersey law requires coverage of mental illness only if it is biologically based.

Through an assistant, Sellinger, a partner with the Florham Park, New Jersey office of Greenberg Traurig, declined to comment. Wise man.

In a ruling last December, U.S. Magistrate Judge Patty Shwartz of Newark rejected plaintiffs’ arguments that “the writings are therapy tools meant for self-reflection” and that if disclosed would cause stress, anxiety and the potential for relapse.

“The Court will require production of entries on web pages such as ‘MySpace’ or ‘Facebook’ that the beneficiaries shared with others,” Shwartz said in her ruling. “The privacy concerns are far less where the beneficiary herself chose to disclose the information.”

The magistrate judge noted that she had already denied the defense the opportunity to depose the teenagers. She set a January 15 deadline for the plaintiffs to produce the entries.

Sellinger, in his letter to the court, pointed out that he got a one-paragraph response stating there are “no responsive documents to be produced,” from the lawyer in one of the class actions, while lawyers in the companion case “completely ignored the deadline.”

After arguing to protect whatever entries the teenagers made on social networking sites, the plaintiffs lawyers now claim there are none. The lawyer accused of ignoring the deadline Bruce Nagel of Nagel Rice in Roseland, New Jersey said the issue was resolved in a telephone conference call with the judge today.

His clients are three families, the parents of three teenage girls. “We are supplying a certification of the families, which says that there are no entries relating to eating disorders,” Nagel said.

Ditto for David Mazie of Roseland’s Mazie Slater Katz & Freeman. “There are none; I can’t make something out of thin air,” he said.

Mazie said there are no relevant Facebook or MySpace entries because anorexia and bulimia is “a very, very personal mental illness.” A Frontline documentary called “Growing Up Online,” which was broadcast on January 22, featured a 16-year-old girl with an eating disorder, who relied on online forums devoted to the quest to be thin.

The case law on discovery of materials posted on social networking sites is just developing. Phillip Malone, director of the cyber law clinic at the Berkman Center for Internet & Society at Harvard Law School, says the generation that has grown up online have different privacy expectations, and believe they can put material on the Internet with the expectation that only a limited group will see it.

“We should recognize that there is a continuum,” Malone says. A teenager on Facebook sharing with six friends “is a very small and limited group and courts should treat that differently than a blog available to the whole world.”

Malone’s reading of this case is that the magistrate conducted the right analysis in deciding the benefit outweighed the potential harm to the teenagers.

“To me, the lesson is that we will continue to see attempts in litigation to get information people post on social networking sites, as well as emails, even when people think they are doing it in a private context,” Malone says. “People are leaving much more of a trail now.”

And Malone knows a bit about cyber trails in litigation. He was the Justice Department’s lead lawyer in its antitrust case against Microsoft. That trial turned on email evidence and was crowned “the first major E-mail trial” by the New York Times.

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