Information on Facebook is subject to discovery in litigation
Can a defendant in a civil suit be forced to provide the plaintiff information from the defendant’s Facebook account, such as photos, messages, and even deleted items? They sure can. This may not surprise many trial lawyers, but I think it may come as a big surprise to many Facebook users who end up in litigation. Personal injury defense lawyers and divorce lawyers certainly are using public Facebook pages to see if the opposing party has posted any photographs or messages that contradict the theory of their case.
Although there isn’t a lot of reported case law directly related to Facebook accounts, it’s well established under Federal Rule of Civil Procedure 26(b)(1) that the scope of permissible discovery is quite broad. Parties in litigation may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, and relevant information need not be admissible at the trial in order to be within the scope of permissible discovery if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Maryland Rule of Civil Procedure 2-402(a) casts a similarly wide net in state court litigation. Although federal trial courts have taken the lead in interpreting discovery rules as they relate to electronically stored information (ESI) , the first judicial interpretations of whether Facebook information is discoverable are in a handful of state trial court decisions.
In McMillen v. Hummingbird Speedway, Inc., a state trial court in Pennsylvania granted a motion to compel discovery when the defendant asked in an interrogatory whether the plaintiff belonged to any online social networks, and the plaintiff acknowledged belonging to Facebook and MySpace, but argued that his user names and login information were confidential and therefore not discoverable. The court observed that, under Pennsylvania law, nearly all relevant materials are discoverable, because that state recognizes only a limited number of privileges. The court declined to establish a new privilege for information shared by a party on an online social network. It noted that Facebook’s privacy policies do not guarantee confidentiality, and reasoned that a Facebook user cannot reasonably expect that his communications on and through Facebook would remain confidential. The reasoning of the McMillen court was thereafter adopted by another Pennsylvania trial court in Zimmerman v. Weis Markets, Inc. The Zimmerman decision also referenced a recent New York opinion in the case of Romano v. Steelcase, Inc.
In the Romano case, the plaintiff argued that production of her Facebook and MySpace entries in discovery would violate her constitutional right of privacy, which she asserted should outweigh the defendant’s need to obtain information in discovery. The New York court found that there was no reasonable expectation of privacy for the information posted on an online social network, and emphasized that privacy concerns are far less when it was the party herself that chose to disclose the information on the online forum.
While the number of cases is few at this point, litigants and their attorneys should best assume that Facebook information will be discoverable, if the party seeking discovery can make a foundational showing that relevant information might reasonably be anticipated to be found within the particular Facebook account. While obtaining information directly from Facebook under subpoena is generally considered to be very difficult, a more realistic approach is to obtain Facebook information directly from the account holder, pursuant to a discovery request for production of documents or a subpoena. It’s not yet widely known or appreciated that any Facebook account holder can download into an Adobe .pdf file a copy their entire account archive by going to the account settings portion of their Facebook page and clicking the link for downloading their “expanded archive.” Soon enough, this is likely to be a standard area of inquiry in discovery requests.