Is There A Social Media Privilege?

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:

1. 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.
2. Where a litigant puts physical condition at issue, he or she must anticipate reasonable discovery to rebut the claims.
3. 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)
4. 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.