Courts faced with ruling on discovery requests involving social media
sites are forging new law. Courts can and do issue discovery orders
compelling a party of a lawsuit to grant an opposing party access to his
or her Facebook page or to permit in camera review of social media
sites set to private settings.
Rules of Civil Procedure in most states provide for liberal
discovery, e.g., "Generally, discovery is liberally allowed with respect
to any matter, not privileged, which is relevant to the cause being
tried." Pa.R.C.P. 4003.1; FRCP 34 (The Advisory Committee Notes instruct
that the rule be read broadly and was drafted with the intent to apply
to an ever evolving technological field); NYCPLR 3101 construed
liberally.
Several of the key decisions in this area include the following. In McMillen v. Hummingbird Speedway, Inc.,
2010 Pa. Dist. & Cnty. Dec. LEXIS 270, the plaintiff claimed
substantial injuries, including possible permanent impairment, loss and
impairment of general health, strength, and vitality, and inability to
enjoy certain pleasures of life, after he was rear-ended during a cool
down lap following a July 7, 2007, stock car race. The court granted
defendants' Motion to Compel Discovery and ordered the plaintiff to
provide his Facebook and MySpace user names and passwords to counsel for
defendants after defendants reviewed the public portion of plaintiff's
Facebook account and discovered comments about his fishing trip and
attendance at the Daytona 500 race in Florida, reasoning
Without more, the complete access afforded
to the Facebook and MySpace operators defeats McMillen's proposition
that his communications are confidential. The law does not even protect
otherwise privileged communications made in the presence of third
parties. See e.g. In re Condemnation by City of Philadelphia, 981
A.2d 391, 397 (Pa. Commw. Ct. 2009) ("Confidentiality is key to the
[attorney-client] privilege, and the presence of a third-party during
attorney-client communications will generally negate the privilege").
When a user communicates through Facebook or MySpace, however, he or she
understands and tacitly submits to the possibility that a third-party
recipient, i.e., one or more site operators, will also be receiving his
or her messages and may further disclose them if the operator deems
disclosure to be appropriate. That fact is wholly incommensurate with a
claim of confidentiality. Accordingly, McMillen cannot successfully
maintain that the element of confidentiality protects his Facebook and
MySpace accounts from discovery. ... The Court reaches the same result
upon considering Wigmore's test for privilege.
In Zimmerman v. Weis Markets, Inc., No. CV-09-1535
(Northumberland Co., May 19, 2011), the plaintiff had claimed serious
physical injuries from an on-the-job accident. Photos that he posted to
social media sites cast doubt on the severity of his claimed injuries
and whether they predated his work-related accident. The publicly
available photos induced the defendant to believe that further relevant
evidence might exist on the password-protected parts of the site
accessible only by the plaintiff's "friends." The plaintiff claimed that
he had a privacy interest in the password-protected materials. In
ruling against plaintiff on this issue, the court noted that "All the
authorities recognize that Facebook and MySpace do not guarantee
complete privacy. Facebook's privacy policy explains that users post
any content at the site at their own risk and informs users that this
information may become publicly available."
Piccolo v. Paterson, No. 2009-04979 (Bucks Co., May 5, 2011),
was a personal injury case in which the plaintiff allegedly suffered
significant facial injuries as a result of an airbag deployment. In her
suit against the driver of the vehicle, defendants were permitted to
take photographs of the plaintiff's face and were also provided with
numerous photographs of the plaintiff before and after the accident.
Plaintiff's counsel objected to the defendants' request for access to
the plaintiff's Facebook page, which ostensibly was to determine whether
the plaintiff's claims of injury were consistent with her postings on
Facebook, on the basis that the defendants already had in their
possession a multitude of photographs, that the defendants failed to
make a showing of materiality, and that the request was an unreasonable
annoyance, oppressive, and an unreasonable burden. In a brief opinion,
the court denied the discovery request.
In Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d
650, 2010 N.Y. Misc. LEXIS 4538, 2010 NY Slip Op 20388 (2010), Defendant
filed a CPLR 3101 motion for access to plaintiff's current and
historical social networking pages and accounts, claiming that the
plaintiff had placed certain information on the sites that it believed
were relevant to the extent and nature of her injuries, especially her
claims for loss of enjoyment of life. The court found, inter alia, that
in light of the fact that the public portions of the plaintiff's social
networking sites contained material that was contrary to her claims and
deposition testimony, there was a reasonable likelihood that the private
portions of her sites might contain further evidence such as
information with regard to her activities and enjoyment of life, all of
which were material and relevant to the defense of her personal injury
action. The plaintiff's right to privacy was outweighed by the
defendant's need for the information. As neither of the social
networking sites guaranteed complete privacy, the plaintiff had no
legitimate reasonable expectation of privacy. The defendant's attempts
to obtain the information via other means were thwarted by the
plaintiff's counsel. Consequently, pursuant to CPLR 3101, the defendant
was entitled to the information.
Troubling privacy rights implications exist in criminal cases where
the victim may be forced to have his or her privacy invaded. See, e.g., USA v. Lakha,
N.D. Ga., 1:10cr451, in which a sexual assault victim was required to
share Facebook materials with defense counsel and the judge for review.
The common factors in these opinions are as follows:
- Where a litigant voluntarily posts pictures and information on
social media sites to share with other users of the sites, he or she
cannot claim to possess any reasonable expectation of privacy to prevent
a defendant from access to such information.
- Where a litigant puts physical condition at issue, he or she must anticipate reasonable discovery to rebut the claims.
- Courts will not permit a fishing expedition: discovery in the social
media context requires a threshold showing that publicly accessible
portions of a social networking site contain information that would
suggest that further relevant postings are likely to be found by access
to the non-public portions. See generally McCann v. Harleysville Insurance Company, 78 A.D.3d 1524 (N.Y.S.2d 2010)
- A court may decline to review materials in camera: 1) strain on
court resources, 2) unfair to require court to guess at what may be
germane to case. But see Barnes v. CUS Nashville, LLC, 3:09-cv-00764 (M.D. Tenn) (June 3, 2010) (court offers to friend witnesses)
Lisa C. McManus is Manager of the LexisNexis Communities and has
presented frequently on the intersection of social media and the
practice of law.