A party’s right to privacy has always been an important and sometimes limiting factor in the resolution of discovery disputes. Social media platforms, which allow users to select the extent with whom they share their network, posts and photos, inevitably create a conflict between what users perceive as “private” content (based on settings used to control who they share information with) and the fact that all content that is relevant to a particular lawsuit may be discoverable. Litigants are finding that in resolving discovery disputes involving social media, the technological platforms may be new but traditional discovery rules still apply. Below are four cases that have helped establish a familiar patch of terrain in a legal landscape that has been remade in so many other ways by social media.
Privacy Settings May Not Protect You.
In Largent v. Reed, 2011 WL 5632688, (Pa. C.P. Franklin Co. Nov. 8, 2011), the defendant moved to compel the plaintiff’s Facebook user name and account. The plaintiff claimed that the motorcycle accident caused by the defendant left her with severe physical and mental pain. During the plaintiff’s deposition, she testified that she had a Facebook account and even accessed it the night before the deposition. Because the plaintiff’s Facebook page had recently been public, the defendant suspected that the posted Facebook pictures and status updates related to her having fun and going to the gym. The defendant’s motion to compel requesting access to the plaintiff’s Facebook information was focused on uncovering evidence that would undermine the severity of the plaintiff’s injury allegations. In ordering the plaintiff to turn over her Facebook log-in information, the Court maintained that there “is no confidential social networking privilege under existing Pennsylvania law” and that there is “no reasonable expectation of privacy in material posted on Facebook.” The Court held that the plaintiff’s Facebook information was relevant, not privileged, and therefore discoverable.
Then Again, Maybe They Will.
In Fawcett v. Altieri, 960 N.Y.S. 2d 592 (N.Y. Sup. Ct. 2013), the plaintiff sued based on the injuries resulting from the parties’ altercation. The defendant moved to compel access to the plaintiff’s social media accounts, arguing that the plaintiff’s social media accounts were key to determining whether the plaintiff posted comments about the altercation-related injuries or the altercation generally. Unlike the defendant in Largent, however, the defendant in Fawcett had no grounds to suspect that the plaintiff’s social media accounts contained such relevant evidence. In reaching its decision, the Court reasoned that “there must be a clear factual predicate to compel the production of social media records.” Here, the defendant failed to make such a showing “with some credible facts that the adversary subscriber has posted information or photographs that are relevant to the facts of the case at hand.” Consequently, the Court denied the defendant’s motion to compel.
It Can Come Down to How Much You Ask for …
In Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 387-89 (E.D. Mich. 2012), the plaintiff filed suit over injuries she allegedly suffered when she slipped and fell at the Detroit Metropolitan Airport. When the plaintiff refused to voluntarily give the defendant unfettered access to her Facebook records (including information that the plaintiff designated as “private”—i.e., not publicly available for viewing), the defendant moved to compel, arguing that the plaintiff’s publicly available records showed her in photos holding a four-pound dog and attending a birthday celebration. As in Largent, the Tompkins court made clear that social media information is generally discoverable, even if it is designated as private. The Tompkins Court maintained that there was no privilege for social media activity and that it should be produced if relevant. But, as in Fawcett, the Court also recognized that a party’s rights to discovery of social media accounts have limits. The Tompkins Court maintained that the defendant did “not have a generalized right to rummage at will through information that plaintiff has limited from public view.” The Court further stated that before a party may access information on a private social media account, he must make a “threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.” In Tompkins, the court found that the defendant failed to make this threshold showing and, further, that the request to search through the plaintiff’s entire account was overbroad. The Court considered the publicly available photos of the plaintiff with a dog and at a birthday party insufficient grounds to justify invading the plaintiff’s Facebook account because the public photos did not undermine the plaintiff’s alleged injuries. The Court therefore ruled that the defendant was not entitled to obtain the plaintiff’s private Facebook information.
… and the Relevance of the Material Requested.
In DiMartino v. Antoine, CIV 054803/2015, divorcing parents locked in a bitter custody dispute also sought court intervention to allow discovery into social media accounts. The father/husband requested a court order allowing him to access the wife/mother’s Facebook account. The husband claimed he was looking for evidence of his wife’s frequent travels and time away from their son—thus showing that he is the child’s primary caretaker. Public portions of the wife’s Facebook page revealed that she traveled in Italy and Boston. Reasoning that time spent with the child may be relevant and material to the Court’s custody determination, the Court ordered the wife to produce her Facebook log-in credentials.
It is clear there is no privilege for information shared on social networking sites, even when shared “privately” or exclusively with “friends.” But Fawcett, Tompkins and DiMartino suggest that prior to invading content unavailable to the public, courts will require a preliminary showing that social media accounts contain information relevant to the claims at issue in the litigation. Tompkins also suggests that privacy settings do have some value in curtailing the Court’s reach into social media accounts. As evident from the cases above, the courts are trying their best to apply traditional discovery rules to ever-evolving social media platforms.