Social media e-discovery: are your Facebook posts discoverable in civil litigation?
J. Alexander Lawerence, Morrison & Foerster LLP, August 24 2015
Note: Although the following article may be legally technical for some, it raises some very important issues regarding what may be and what may not be available to the other side in a court case you're involved in. ~ Investigative Tactics
Judge Richard J. Walsh began his opinion in Largent v. Reed with the following question: “What if the people in your life want to use your Facebook posts against you in a civil lawsuit?” With the explosive growth of social media, judges have had to confront this question more and more frequently. The answer to this question is something you’ll hear quite often from lawyers: “It depends.”
Courts generally have held that there can be no reasonable expectation of privacy in your profile when Facebook’s homepage informs you that “Facebook helps you connect and share with the people in your life.” Even when you decide to limit who can see your photos or read your status updates, that information still may be discoverable if you’ve posted a picture or updated a status that is relevant to a lawsuit in which you’re involved. The issue, then, is whether the party seeking access to your social media profile has a legitimate basis for doing so.
If you’ve updated your Facebook status to brag about your awesome new workout routine after claiming serious and permanent physical injuries sustained in a car accident—yes, that information is relevant to a lawsuit arising from that accident and will be discoverable. The plaintiff in Largent v. Reed learned that lesson the hard way when she did just that and the court ordered her to turn over her Facebook log-in information to the defense counsel. On the other hand, your Facebook profile will not be discoverable simply because your adversary decides he or she wants to go on a fishing expedition through the last eight years of your digital life.
Courts in many jurisdictions have applied the same standard to decide whether a litigant’s Facebook posts will be discoverable: The party seeking your posts must show that the requested information may reasonably lead to the discovery of admissible evidence.
For example, the plaintiff in Zimmerman v. Weis Markets, Inc. claimed that he suffered permanent injuries sustained from operating a fork lift—and then went on to post that his interests included “ridin” and “bike stunts” on the public portion of his Facebook page. The court determined that his public posts placed the legitimacy of his damages claims in controversy and that his privacy interests did not outweigh the discovery requests.
In contrast, in Tompkins v. Detroit Metropolitan Airport, the plaintiff in this slip-and-fall case claimed back injuries in connection with an accident at the Detroit Metropolitan Airport. The defendant checked the plaintiff’s publicly available Facebook photos (i.e., photos not subject to any of Facebook’s available privacy settings or restrictions), and stumbled upon photos of the plaintiff holding a small dog and also pushing a shopping cart. The court determined that these photos were in no way inconsistent with the plaintiff’s injury claims, stating that if “the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the nonpublic section of her account.”
The Tompkins court recognized that the plaintiff’s information was not discoverable because parties do not “have a generalized right to rummage at will through information” a person has posted. Indeed, the defendants sought the production of the plaintiff’s entire Facebook account. Their overbroad and overreaching discovery request was—and is—common among parties seeking access to their opponents’ Facebook data.
In response to these overbroad requests, courts routinely deny motions to compel the production of a person’s entire Facebook profile because such requests are nothing more than fishing expeditions seeking what might be relevant information. As the court in Potts v. Dollar Tree Stores, Inc. stated, the defendant seeking Facebook data must at least “make a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”
The Tompkins and Potts decisions mark important developments in Facebook e-discovery cases. They establish that a person’s entire Facebook profile is not discoverable merely because a portion of that profile is public. In turn, Facebook’s privacy settings can provide at least some protection against discovery requests—assuming that the user has taken efforts not to display photos publicly that blatantly contradict his or her legal claims.
When it is shown that a party’s Facebook history should be discoverable, however, the party must make sure not to tamper with that history. Deactivating your Facebook account to hide evidence can invite the ire of the court. Deleting your account outright can even result in sanctions. The takeaway is that courts treat social media data no differently than any other type of electronically stored information; what you share with friends online may also be something you share with your adversary—and even the court.
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