If you run a business there may be a time when, in the course of a lawsuit, you might want, and need, access to an employee’s or plaintiff’s Facebook, Twitter, or other social media account.  Courts across this country have begun to wrestle with this very issue – how, when and under what circumstances, is it appropriate to grant a litigant access to the other party’s social media accounts?

As many of you know, during a lawsuit, the parties serve written “discovery” upon the other parties seeking to obtain documents, information and other evidence that might be relevant to the prosecution or defense of a claim.  Nowadays, these discovery requests often include requests for access to information on social media sites.  Since no hard and fast discovery rules exist to guide us, that leaves access to social media in a legal gray area, and ultimately up to the judge’s discretion.  Here are some examples of when and how access has been granted or denied:

  • Fourteen year old girl injured in car crash was ordered to turn over 707 Facebook pages, along with pictures.  Ohio Casualty Insurance argued the account demonstrated that plaintiff was not permanently injured.
  • Former employee in Louisville was ordered to turn over Facebook pages in a wrongful termination case where she claimed she was fired due to multiple sclerosis.  U.S. District Court Judge John G. Heyburn II ruled that a person’s Facebook page could be pertinent to a case and open to discovery.  As to the admissibility issue, Judge Heyburn said he handles all discovery the same.  “[Attorneys] have to come up with some reason why the page is likely to contain relevant information,” he said.  “It would always be on a case-by-case basis.”
  • Plaintiff in Jefferson County, Pa., sued for personal injuries.  Court of Common Pleas Judge John Henry Foradora granted discovery of the private portions of plaintiff’s Facebook page.  Since relevant photos of plaintiff’s activities existed on the public portion of the page, Judge Foradora ruled that it was reasonable to believe other evidence might also be found in the private section.  Foradora said people need to be aware of the debate over the legal nature of the public and private portions of Facebook.  He regularly looks at the Facebook pages of persons who appear in his court, and he asks them, “[w]ould you say this to grandma?”
  • In an Allegheny County, Pennsylvania case, the court set out guidelines for determining the level of intrusiveness into a party’s social media posts.  The court recognized the need for a threshold showing of relevance of the information, i.e., the party must articulate some facts that suggest relevant information may be contained in the non-public portion of the profile.  The court then balanced the intrusion into the privacy of the user’s social media profile with the moving party’s reasonable need for discovery of further credible evidence. 
  • In the Southern District of Indiana, the federal district court addressed discoverability of social media in an employment discrimination case where the plaintiff claimed certain emotional distress damages.   The court concluded the content was not private simply because the plaintiff designated it as such, and that such information must be produced when relevant to a claim or defense.  The court ordered production of the plaintiff’s Facebook account on the basis that her allegations of severe emotional distress rendered some posts relevant, and that discovery was proper and inevitable when these types of injuries are alleged.  The court, however, did not grant unlimited access, and instead set out a specific time frame, relevant to her alleged injury and claim of discrimination, where communications and photos must be disclosed. 
  • In July, a federal judge in New York ordered Twitter to turn over a user’s posts in connection with the Occupy Wall Street movement.  Both defendant and Twitter initially refused.  The judge ruled the defendant did not have a reasonable expectation of privacy under the Constitution, and that posting was akin to “screaming out the window.”  The court also affirmed a law enforcement agency’s authority to search social media posts for evidence.

So what do these cases tell us about how a court might handle a discovery request for a user’s social media accounts?  First, by and large, communications on a social media site, whether tagged private or not, would not be protected as privileged (that is, absolutely non-discoverable).  This is because either a communication with a “friend” does not produce a privileged communication, or even if it did, sharing the content with others waives such privilege. 

Second, courts are not likely to allow a “fishing expedition” into non-public portions of a user’s account that has no reasonable basis and is wholly intrusive.  Instead, the court would likely balance the relevance and need for the evidence with the privacy interests involved in protecting non-public information. 

Third, if you are a social media user – you should keep in mind that your posts might someday wind up in the courtroom.  So, follow the advice of one of the judges and think – “Would you say this to grandma?”

That said, this all seems pretty similar to any other discovery dispute.  One party wants unfettered access to information and the other party objects.  The court is required to balance the need for the information, with the potential harm or intrusion caused to the other party.