Court Orders Disclosure of Psychic Chat Records in Retaliation Case – Glazer v. Fireman’s Fund

[Post by Venkat Balasubramani]

Glazer v. Fireman’s Fund Ins. Co., 11 Civ. 4374 (PGG) (FM) (S.D.N.Y.; Apr. 4, 2012). The complaint.

Glazer (her LinkedIn page) sued Fireman’s Fund Insurance, alleging that Fireman’s Fund retaliated against her because she complained about “discrimination against non-African Americans.” Fireman’s Fund found out that Glazer had consulted with various psychics through LivePerson’s “on-line and professional consulting services” platform. It requested disclosure of the chat records from LivePerson, after Glazer said she could no longer access them.

LivePerson objected on the basis that Glazer could produce the documents herself and had agreed to do so. Glazer says that she closed her account and her old chats were inaccessible. At the discovery conference, LivePerson says that if Glazer were to open up a new account, all of her previous chats would be available to her (minus the chats that she was unable to pay for, which a LivePerson staff person could access).

The court notes the lurking Stored Communications Act issue, under which LivePerson may either be the provider of an “electronic communications service” or a “remote computing service” (citing, among other cases, Crispin v. Audigier and Theofel v. Farey-Jones). The court also flags the issue of whether LivePerson’s privacy policy bars or authorizes disclosure. The court says that LivePerson’s policies are inconsistent. The terms of service say that information transmitted through LivePerson.com is not confidential and that LivePerson is granted a license to reproduce and “publicly perform” this information. But LivePerson’s privacy policy also says that member-expert communications will remain “confidential, personal, and private” unless both parties to the communications agree to disclosure.

Ultimately, the court says that the Stored Communications Act and privacy policy issues are irrelevant:

[t]he Court need not determine whether Glazer’s communications are electronically stored, or whether Glazer consented to the disclosure of her LivePerson chats by agreeing to the Terms and Conditions, because it may simply direct that she consent to disclosure if the chats are likely to contain information relevant to this case. [citing Romano v. Steelcase, among other cases]

The court orders Glazer to open a new LivePerson account, retrieve all available chat transcripts and produce them to Fireman’s Fund. In addition to the paid chats, Fireman’s Fund also argued for disclosure of free chats, and the court says Glazer should try to retrieve these as well. To the extent she cannot, the court directs Glazer to execute a consent form so LivePerson can retrieve the chats. The court also orders disclosure of LivePerson’s billing records for Glazer, which Glazer will be able to access when she opens a new account. Finally, Fireman’s Fund asked for any documents relating to chats between Glazer and psychics through sites other than LivePerson, including some that Fireman’s Fund says occurred as late as January 2012. The court says that these records will be cumulative.

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Psychics make me think of the online harassment case Eric blogged about a couple of weeks ago: “What Do Soymilk and Nutella Have to Do With an Online Harassment Case?–Taylor v. Texas.” As in that case, the outcome here makes you question the efficacy of the psychics in question: one wonders why the psychics didn’t advise Glazer about the possibility of disclosure of the chats to Fireman’s Fund. I guess the psychics must have told Glazer that her litigation prospects were good; otherwise Glazer wouldn’t be in court.

Glazer committed a classic miscue for employee-plaintiffs—she engaged in discussions regarding her dispute through her work email account. If not for this, Fireman’s Fund may not have ever found out about the chats in question. (Note to prospective employment plaintiffs: if there is even a whiff of a dispute with your employer, you should engage in all third-party communications through your own personal email accounts, on your own time, and off your employer’s network.)

The court says that a party can be compelled to produce information that is protected from third party disclosure under the Stored Communications Act. This sounds like the right result, although this court, like the others that have addressed this issue, does not delve into the details. It’s good to see that the court did not require Glazer to turn over her passwords or log-in credentials to Fireman’s Fund. Other courts have taken this approach, ignoring the obvious dangers presented by allowing a litigant to freely rummage around in their opponent’s Facebook account. (A recent decision in a New York worker’s comp case found that postings in a firefighter’s Facebook page was relevant to his claim of damages: Loparcaro v. City of New York. The court in that case took a similar approach and ordered the plaintiff to turn over copies of the relevant Facebook postings to the court so the court could assess privilege and relevance issues. Here’s the Justia link to the court’s order in that case.)

In the meantime, this case is a good reminder that your online communications are not off-limits and that you probably cannot take refuge in the protections of the Stored Communications Act . . . even if you are engaged in chats with psychics!

[NB: the court notes that LivePerson offered chats with lawyers but there was no evidence that Glazer had engaged in chats with lawyers via LivePerson.]

Additional coverage:

Bow Tie Law’s Blog: Psychic Discovery

Previous posts:

Courts Continue to Grapple with Discovery Disputes Around Social Networking Evidence

Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case — McMillen v. Hummingbird Speedway

Plaintiff Can’t be Forced to Accept Defense Counsel’s Facebook Friend Request in Personal Injury Case — Piccolo v. Paterson

Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute — Zimmerman v. Weis Markets, Inc.

Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant — Largent v. Reed

Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute — Barnes v. CUS Nashville

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