With the use of social media becoming the norm, information placed on social networking sites such as Facebook, YouTube, Twitter and foursquare is increasingly becoming fair game for discovery in litigation. Users of these sites may tweet or post detailed minute-by-minute status updates, without considering the implications of their posts. Despite privacy settings, judges have permitted such relevant evidence to be used at trial.
In Equal Employment Opportunity Comm’n v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 11, 2010), a Title VII sexual harassment suit, a United States District Court allowed the production of social networking site content that related to allegations of severe emotional distress. Recognizing that the scope of discovery into social media sites “[would] require the application of basic discovery principles in a novel context,” id. at 434, the court’s challenge was to “define appropriately broad limits . . . on the discovery ability of social communications.” Id. at 434. The court ultimately held that the production of relevant portions of the content on the employees’ social networking site was appropriate, despite the content being designated as “private” on their accounts. Id. at 434-35.
Similarly, the district court in Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011), recently conducted an in camera review of the plaintiff’s Facebook and MySpace accounts after being provided with log-in information. The court reviewed the plaintiff’s Facebook account, including “a thorough review of Plaintiff’s ‘Profile’ postings, photographs, and other information.” Id. at *2.
State courts have also recently held that posts on social media sites are discoverable. In Romano v. Steelcase, Inc., 907 N.Y.S. 2d 650 (2010), the New York Supreme Court considered whether the plaintiff had to turn over to defendants information from her Facebook and MySpace accounts, despite strict privacy settings. Ordering the plaintiff to relinquish access to her entire Facebook and MySpace pages, the court noted that “when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.” Id. at 657. Similarly, a Pennsylvania court recently held that a person who voluntarily posts pictures and information on Facebook and MySpace does not have a reasonable expectation of privacy in the posts to prevent production of the information, even if the person designates that accounts be viewed only by friends. Zimmerman v. Weis Markets, Inc., 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011).
All in all, organizations and their employees must understand the evolving legal implications of social media. They should expect that opponents in litigation will be able to gain access to the content on their social networks and should adopt social media policies accordingly.