Discoverability of Social Network Information

Users can also set privacy levels and control to what extent their profile information, comments, wall posts and other information are viewable by site users, search engines and third-party applications and games. For example, on Facebook, user names, profile pictures and hometown and educations connections do not have privacy settings and are, by default, made public, but the site offers more restrictive settings that limit the type of people who may view other social media information. Privacy settings set to “Everyone” mean that profile information is indexed by search engines and publicly available to the entire online community and exported and distributed without privacy limitations.

Discovery Rules

Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, including requesting that another party “produce and permit the [requesting] party ' to inspect, copy, test, or sample ' any ' designated documents or electronically stored information.” Fed.R.Civ.P. 26(b); 34(a). Although privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for an improper purpose, a litigant's expectation and intent that communications be maintained as private is not a legitimate basis for shielding relevant communications from discovery. EEOC v. Simply Storage Mgmt., LLC, 2010 WL 3446105 at *3 (S.D. Ind. May 11, 2010). Even though there is no common law privilege for information posted in the nonpublic sections of social websites, courts are reluctant to give “carte blanche entitlement” to a party's social media account passwords or allow parties to embark on “fishing expeditions.” Generally speaking, any motion to compel social media evidence should be backed with a threshold showing that the publicly accessible portions of the party's page contain information that is clearly inconsistent with the plaintiff's claims or would otherwise suggest that relevant postings are likely to be found by access to the remainder of, or substantial portion of the account.

In one of the leading cases concerning social media discovery, a New York court in Romano v. Steelcase Inc., 30 Misc.3d 426 (N.Y. Sup. Suffolk Cty 2010), ruled that a defendant was entitled to compel production of the plaintiff's social network data (including current and historical, deleted pages and related information) based upon a review of the public portions of the plaintiff's social network pages that allegedly revealed an active lifestyle that conflicted with the plaintiff's injury claims. The court ruled that the information was both material and necessary to the defense of this action and that the plaintiff could not hide relevant information “behind self-regulated privacy settings.”

Similarly, in Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011), the defendant requested access to the plaintiff's social media accounts based upon publicly viewable pages that showed a potential conflict between the plaintiff's current state of health and his claims of loss of enjoyment of life activities. Finding Romano persuasive, the court granted the motion and found that there was a reasonable likelihood of additional relevant and material information on the nonpublic portions of the social media sites. The court deemed the plaintiff's privacy-related arguments unavailing, concluding that the plaintiff voluntarily posted the information to share with other users and could not now claim he possessed any reasonable expectation of privacy to deny the defendant access, particularly given the defendant's threshold showing of relevance. See also Beswick v. North West Medical Center, Inc., 2011 WL 7005038 (Fla. Cir. Ct. Nov. 3, 2011) (defendants sought discovery of plaintiff's social network content over a five-year period for its defense against plaintiff's medical negligence claims; citing Romano, the court rejected the plaintiff's privacy arguments, stating that a party could not hide behind self-set privacy controls on a social network website that encourages people to share information; the court granted the defendant's motion to compel, ruling that the discovery sought was relevant, reasonably calculated to lead to admissible evidence, and not overly broad or burdensome).

However, other courts have stressed that a litigant is not entitled to a party's social network information without an adequate showing of relevancy. In Thompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012), the court declined defendant's request to view the plaintiff's entire Facebook account and online photo albums, finding that public postings and surveillance footage that showed the plaintiff holding a toy dog and pushing a shopping cart did not belie the plaintiff's claims of injury and were not a sufficient predicate showing that the private Facebook material would be reasonably calculated to lead to the discovery of admissible evidence. See also McCann v. Harleysville Insurance Co. of New York, 78 A.D.3d 1524 (N.Y. App. 4th Dept. 2010) (appellate court affirmed the denial of the defendant's motion to compel a signed authorization for access to the plaintiff's social network account because defendant “failed to establish a factual predicate with respect to the relevancy of the evidence” and essentially sought permission to conduct “a fishing expedition into plaintiff's Facebook account”).

Litigants have also attempted a middle ground on discovery of social media evidence to avoid privacy-related objections. Some parties have asked the court to conduct an in camera review of an adversary's private Facebook postings to determine if there are any relevant materials reasonably calculated to lead to discoverable evidence. Some courts have refused to take on the burden (See e.g., Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 at FN. 2 (Pa. Com. Pl. May 19, 2011), others have stated that such a review is more proper for claims of privilege, not relevance (See e.g., Thompkins v. Detroit Metropolitan Airport, 2012 WL 179320 at *3, FN. 4 (E.D. Mich. Jan. 18, 2012)), but at least one court agreed to the practice (See e.g., Offenback v. Bowman, 2011 WL 2491371 (M.D. Pa. June 22, 2011) (court's in camera review of plaintiff's social media accounts revealed that plaintiff's profile postings, photographs, and other information were mostly unrelated and irrelevant to the litigation, but that a small segment of the nonpublic information contained in the plaintiff's account was discoverable, including posted photographs and text that described post-suit activities).

Final Considerations

While social network user profiles are a relatively new source of information, the above decisions suggest that the basic rights of litigants to obtain relevant, discoverable information, whether in electronic or paper form, have not changed in the face of new technology. While discovery of such “private” information is relatively common in certain types of civil actions (e.g., personal injury lawsuits where the plaintiff has placed his or her mental or physical state at issue), other actions, such as breach of contract or employment actions, might also involve the disclosure of relevant social media communications. To be sure, the discovery of social network communications might be limited in scope by the trial judge based upon the appropriate federal rules of civil procedure or similar state rules and a party may move for a protective order when compelled to disclose confidential information.

It is also worth noting that there is an important legal distinction between a court requiring a party to turn over relevant social network communications during civil discovery and a party attempting to obtain the contents of an adversary's social network account by serving a subpoena on the social network provider. The aforementioned cases do not resolve the question of whether a direct subpoena for such material to an online service provider could be challenged under the Stored Communications Act (“SCA”), 18 U.S.C. ' 2701, which generally prohibits electronic communication services from revealing users' private messages, such as e-mail, to outside entities, absent a statutory exception. At least one recent case interpreted the interplay between the SCA and civil subpoenas to social network providers. See generally Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (S.D. Cal. 2010) (Facebook and MySpace are “electronic communication services” subject to the SCA; court vacated the magistrate's order with respect to permitting the social networks to turn over the plaintiff's opened and unopened private messages, but with respect to wall postings, the court ordered a new hearing because there was a lack of evidence regarding what privacy settings, if any, the plaintiff employed to limit the dissemination of this information).

Richard Raysman, a member of this newsletter's Board of Editors, is a partner at Holland & Knight LLP and co-author of “Computer Law: Drafting and Negotiating Forms and Agreements” (Law Journal Press).

Facebook reportedly has more than 845 million monthly active users who upload around six billion photos per month; Twitter has over 100 million active accounts posting one billion tweets per week. In total, over 80% of Americans use at least one social network. It did not take attorneys long to realize that social network sites were an untapped repository of potentially discoverable information that could be used for impeachment purposes against parties and witnesses. However, users routinely employ privacy settings that only permit network “friends” to view posted material, keeping most information beyond the view of the general public. Despite liberal rules of discovery in civil litigation, parties are generally not entitled to complete access to an adversary's social network accounts without a prima facie showing of relevance. The emerging question is what constitutes a sufficient showing. In recent years, courts have come to varying conclusions as to the discovery of information posted on social networking sites.

Social Networks

Broadly speaking, a social network is a structure that allows its members to share information and enables interpersonal contacts through a website or other Internet portal. Member pages of “core” social networking sites usually contain textual, audio and visual content of a personal nature, though the extent of disclosure varies widely among individual users. A user's profile page might include various content, including pedigree information, pictures, videos, blogs, messages, and lists of “friends,” political causes and leisure pursuits. On social network sites, such as Facebook or MySpace, users exchange information about their personal lives, post commentary about what they are doing or thinking and offer a “wall” on their profile page where friends and others can post open messages. Such sites also provide private messaging services to allow users to communicate with other users within the site's architecture.

Users can also set privacy levels and control to what extent their profile information, comments, wall posts and other information are viewable by site users, search engines and third-party applications and games. For example, on Facebook, user names, profile pictures and hometown and educations connections do not have privacy settings and are, by default, made public, but the site offers more restrictive settings that limit the type of people who may view other social media information. Privacy settings set to “Everyone” mean that profile information is indexed by search engines and publicly available to the entire online community and exported and distributed without privacy limitations.

Discovery Rules

Under the Federal Rules of Civil Procedure, parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, including requesting that another party “produce and permit the [requesting] party ' to inspect, copy, test, or sample ' any ' designated documents or electronically stored information.” Fed.R.Civ.P. 26(b); 34(a). Although privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for an improper purpose, a litigant's expectation and intent that communications be maintained as private is not a legitimate basis for shielding relevant communications from discovery. EEOC v. Simply Storage Mgmt., LLC, 2010 WL 3446105 at *3 (S.D. Ind. May 11, 2010). Even though there is no common law privilege for information posted in the nonpublic sections of social websites, courts are reluctant to give “carte blanche entitlement” to a party's social media account passwords or allow parties to embark on “fishing expeditions.” Generally speaking, any motion to compel social media evidence should be backed with a threshold showing that the publicly accessible portions of the party's page contain information that is clearly inconsistent with the plaintiff's claims or would otherwise suggest that relevant postings are likely to be found by access to the remainder of, or substantial portion of the account.

In one of the leading cases concerning social media discovery, a New York court in Romano v. Steelcase Inc. , 30 Misc.3d 426 (N.Y. Sup. Suffolk Cty 2010), ruled that a defendant was entitled to compel production of the plaintiff's social network data (including current and historical, deleted pages and related information) based upon a review of the public portions of the plaintiff's social network pages that allegedly revealed an active lifestyle that conflicted with the plaintiff's injury claims. The court ruled that the information was both material and necessary to the defense of this action and that the plaintiff could not hide relevant information “behind self-regulated privacy settings.”

Similarly, in Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011), the defendant requested access to the plaintiff's social media accounts based upon publicly viewable pages that showed a potential conflict between the plaintiff's current state of health and his claims of loss of enjoyment of life activities. Finding Romano persuasive, the court granted the motion and found that there was a reasonable likelihood of additional relevant and material information on the nonpublic portions of the social media sites. The court deemed the plaintiff's privacy-related arguments unavailing, concluding that the plaintiff voluntarily posted the information to share with other users and could not now claim he possessed any reasonable expectation of privacy to deny the defendant access, particularly given the defendant's threshold showing of relevance. See also Beswick v. North West Medical Center, Inc., 2011 WL 7005038 (Fla. Cir. Ct. Nov. 3, 2011) (defendants sought discovery of plaintiff's social network content over a five-year period for its defense against plaintiff's medical negligence claims; citing Romano, the court rejected the plaintiff's privacy arguments, stating that a party could not hide behind self-set privacy controls on a social network website that encourages people to share information; the court granted the defendant's motion to compel, ruling that the discovery sought was relevant, reasonably calculated to lead to admissible evidence, and not overly broad or burdensome).

However, other courts have stressed that a litigant is not entitled to a party's social network information without an adequate showing of relevancy. In Thompkins v. Detroit Metropolitan Airport, 2012 WL 179320 (E.D. Mich. Jan. 18, 2012), the court declined defendant's request to view the plaintiff's entire Facebook account and online photo albums, finding that public postings and surveillance footage that showed the plaintiff holding a toy dog and pushing a shopping cart did not belie the plaintiff's claims of injury and were not a sufficient predicate showing that the private Facebook material would be reasonably calculated to lead to the discovery of admissible evidence. See also McCann v. Harleysville Insurance Co. of New York , 78 A.D.3d 1524 (N.Y. App. 4th Dept. 2010) (appellate court affirmed the denial of the defendant's motion to compel a signed authorization for access to the plaintiff's social network account because defendant “failed to establish a factual predicate with respect to the relevancy of the evidence” and essentially sought permission to conduct “a fishing expedition into plaintiff's Facebook account”).

Litigants have also attempted a middle ground on discovery of social media evidence to avoid privacy-related objections. Some parties have asked the court to conduct an in camera review of an adversary's private Facebook postings to determine if there are any relevant materials reasonably calculated to lead to discoverable evidence. Some courts have refused to take on the burden (See e.g., Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 at FN. 2 (Pa. Com. Pl. May 19, 2011), others have stated that such a review is more proper for claims of privilege, not relevance (See e.g., Thompkins v. Detroit Metropolitan Airport, 2012 WL 179320 at *3, FN. 4 (E.D. Mich. Jan. 18, 2012)), but at least one court agreed to the practice (See e.g., Offenback v. Bowman, 2011 WL 2491371 (M.D. Pa. June 22, 2011) (court's in camera review of plaintiff's social media accounts revealed that plaintiff's profile postings, photographs, and other information were mostly unrelated and irrelevant to the litigation, but that a small segment of the nonpublic information contained in the plaintiff's account was discoverable, including posted photographs and text that described post-suit activities).

Final Considerations

While social network user profiles are a relatively new source of information, the above decisions suggest that the basic rights of litigants to obtain relevant, discoverable information, whether in electronic or paper form, have not changed in the face of new technology. While discovery of such “private” information is relatively common in certain types of civil actions (e.g., personal injury lawsuits where the plaintiff has placed his or her mental or physical state at issue), other actions, such as breach of contract or employment actions, might also involve the disclosure of relevant social media communications. To be sure, the discovery of social network communications might be limited in scope by the trial judge based upon the appropriate federal rules of civil procedure or similar state rules and a party may move for a protective order when compelled to disclose confidential information.

It is also worth noting that there is an important legal distinction between a court requiring a party to turn over relevant social network communications during civil discovery and a party attempting to obtain the contents of an adversary's social network account by serving a subpoena on the social network provider. The aforementioned cases do not resolve the question of whether a direct subpoena for such material to an online service provider could be challenged under the Stored Communications Act (“SCA”), 18 U.S.C. ' 2701, which generally prohibits electronic communication services from revealing users' private messages, such as e-mail, to outside entities, absent a statutory exception. At least one recent case interpreted the interplay between the SCA and civil subpoenas to social network providers. See generally Crispin v. Christian Audigier, Inc. , 717 F.Supp.2d 965 (S.D. Cal. 2010) (Facebook and MySpace are “electronic communication services” subject to the SCA; court vacated the magistrate's order with respect to permitting the social networks to turn over the plaintiff's opened and unopened private messages, but with respect to wall postings, the court ordered a new hearing because there was a lack of evidence regarding what privacy settings, if any, the plaintiff employed to limit the dissemination of this information).

Richard Raysman, a member of this newsletter's Board of Editors, is a partner at Holland & Knight LLP and co-author of “Computer Law: Drafting and Negotiating Forms and Agreements” (Law Journal Press).