Continuing the Debate Over Discoverability of Social Network Sites
Facebook and other social networks are becoming a pretty scary places for litigation attorneys.
We have a standard discovery protocol requesting this information. If you would like a copy, please contact me at www.perkinsfirm.com or via e-mail at firstname.lastname@example.org.
Naturally, these efforts are being met with resistance.
Some argue that it’s a “fishing expedition.” When a person claims a personal injury with post accident limitations, I think his pre and post accident activities is fair game. There are some “older” judges who are not willing to make a plaintiff give up this information, but as electronic discovery becomes more and more common, it seems this evidence is relevant and discoverable.
Do you have any idea how many potential resources there are for discovery of social media? See the following illustration:
In Gallagher v. Urbanovich, Nick Gallagher sued Matthew Urbanovich in Pennsylvania, claiming Urbanovich hauled off and punched him in the face during an intramural soccer game. During discovery Gallagher’s lawyer filed a motion requesting Urbanovich’s Facebook log-in and password information. The Judge granted this request, despite the fact that there was no evidence that Urbanovich’s public profile contained relevant information.
The Stored Communication Act (“SCA”) was passed by Congress in 1986 as part of the Electronic Communications Privacy Act. In a nutshell, the SCA’s intention is to provide 4th Amendment-like protection for data stored by third-party service providers. Meaning the Government can’t come in and force FB to hand over all the information it has on all its users without permission from a Court. Most people familiar with the SCA would agree that it is antiquated and is in serious need of an overhaul. The privacy protections afforded by the Act vary and are determined by whether the service provider is considered an electronic communication service (“ECS”) or a remote computer service (“RCS”) provider. In the present day these two classifications are difficult to delineate.
In the matter, Crispin v. Audigier (U.S. District Court for the Central District of Calif.), the Defendant sought information from the Plaintiff’s MySpace and FB accounts. The Plaintiff sought to quash the subpoena for a number of reasons, including that it violated the SCA. The Court concluded any unopened messages or communications would allow for FB or MySpace to be branded an ECS as per the SCA definition, but once those messages were opened the service provider was acting as an RCS. Therefore, some components of the Plaintiffs pages were protected by the SCA, while others were not.
If it’s locked down or marked Private then the Courts can’t get it, right?
A personal diary is potentially discoverable as it goes to state of mind and is often used in proceedings. If a person locks his or her account down so it is only viewable to a limited number of individuals that is not protection from discovery. In Leduc v. Roman and Murphy v. Perger, the Courts determined that locking down the accounts did not preclude discovery or requests for information from the SNS accounts. However, that does not mean that the opposing party has the keys to the kingdom. Parties should only produce and receive items that are relevant or that have been ordered for production by the Court.
“Facebook is not used as a means by which account holders carry on monologues with themselves.”
If Facebook discovery really has become the Wild West, there is a very serious possibility that anything and everything a client decides to post is fair game for your adversary.