Think about all the damaging, embarrassing, and ultimately private information you post onto your Facebook account. It's not that surprising that for some attorneys, social media is akin to an appetizing treasure trove of discovery just waiting to be harvested.
With technology advancing and more users going online, courts are starting to catch up.
But the way that courts treat social media seems to be in flux. In one New York case, a judge ruled that a defendant can't have access to a private Facebook account during the discovery process. The rationale being that discovery is supposed to lead to relevant evidence. Discovery shouldn't be a rampant fishing expedition through a person's personal life.
Yet, the New York court's decision isn't exactly the norm. Cases with similar discovery requests have ended up with completely different outcomes. In Pennsylvania, a car injury plaintiff was forced to turn over her Facebook password to the defendant. This gave the defendant the ability to look around the plaintiff's account in an effort to find evidence that the plaintiff's injuries weren't real.
In Connecticut, a judge ordered a divorcing couple to swap Facebook passwords to resolve their child custody case.
Perhaps these discovery orders are getting a little too broad. Like the New York court ruled, giving someone free access to someone else's social media account may be crossing a line. When you look at traditional forms of discovery, do judges allow plaintiffs or defendants to rifle through each other's desk drawers?
Who's to say that social media-based discovery is any different. There's probably a lot of personal (and yes, sometimes even private) information on someone's Facebook account that isn't relevant to any litigation. But what do you think: do individuals really have a privacy interest in statements and photographs they are posting to 500 of their "closest" friends online?
- Social networks not private in court (Pittsburgh Post-Gazette)
- Judge Orders Couple to Exchange Facebook Passwords (FindLaw's Law & Daily Life)
- Facebook Divorce: Evidence from Wall posts (FindLaw's Law & Daily Life)