Is a non-party’s Facebook page fair game in lawsuits?

An issue of the use of a non-party’s Facebook page as evidence in a brief has developed in a case over the legality of Farmington Public Schools’s sale of the closed Eagle Elementary School to the Islamic Cultural Association.

In the suit, FPS sold the school to the Islamic Center for $1.1 million. The center initially offered much less than that, but raised the offer to meet the appraised value.

The plaintiffs sued the district to stop the sale, alleging that the district could have sold it for much more, and that the board didn’t follow procedure. The district filed a motion for summary disposition. In a reply to the plaintiffs’ response to that motion, the district challenged the plaintiffs’ standing to sue to block the sale, alleging that their claims “are mere cover for religious and cultural intolerance.” In support of the statement, the district’s attorney, Michael Weaver of Plunkett Cooney, attached the Facebook page of an opponent of the sale, which contained several anti-Islamic posts, including ones referring to the sale of Eagle Elementary. [See footnote 3, and Exhibit B]. The page belonged to Sue Burstein-Kahn, a resident who is not part of the lawsuit. Her husband, Murray, is running for a seat on Farmington’s Board of Education. Burstein-Kahn wrote a letter to the editor of the Observer & Eccentric in August accusing the board, its president and a district administrator, by name, of trying to deceive the public and violating the public trust. While she didn’t express any anti-Muslim animus in her letter, some of the posts on her Facebook page attached as Exhibit B certainly did.

[UPDATE: This morning, Oakland County Circuit Judge Rae Lee Chabot dismissed the plaintiffs’ case against the district for lack of standing. HT:]

Plaintiffs’ lawyer Robert C. Davis of Mount Clemens-based Davis Listman Brennan ripped Weaver for including the Facebook page.

In a statement emailed Tuesday evening, the plaintiffs’ attorney Robert C. Davis of Davis Listman Brennan in Mt. Clemens criticized use of the personal Facebook page. “This is how people act when they become defensive. They resort to name calling and personal attacks to deflect the real issues,” he wrote. “It is corrupt and wrong. The cover is worse than the original violations.”

The issue here is simple: Is a non-party’s Facebook page being offered as evidence of public sentiment fair game? It’s fairly well-settled that social network users give up much of their rights to privacy for things they post, sometimes leading to bad things. While it may be unfair in some instances, such as when a Facebook “friend” tags someone in a photo the person wouldn’t want an employer to see, the fact is that no one should really have an expectation of privacy for things they put on Facebook. But should those posts wind up in a court filings? Let us know what you think in the comments.


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