Facebook Status: No Expectation of Privacy

Wednesday, February 9, 2011 by Thought Leadership Team

Like any other electronic evidence, information communicated through social media – such as Facebook, MySpace or Twitter – is discoverable if it is reasonably likely to be relevant, is non-privileged and is not deemed overly prejudicial. Nevertheless, as is common when new technologies hit mainstream, the discoverability of these mediums has not seen a swift response by the courts. Further, the courts that have addressed these sites often differ in their analysis and conclusions, lending an air of unpredictability. Despite the inconsistencies and the fact that there are still relatively few cases involving social networking sites in the civil arena, important lessons can be gained in examining these rulings and potential evidence gold mines.

To date, the most prominent issues that are disputed in social media ediscovery cases involve the questions of privacy and, by extension, relevance. For example, addressing privacy concerns in an artwork licensing dispute, Crispin v. Christian Audigier, Inc.,1 the District Court of Central California ruled that under the Stored Communications Act (SCA), messages sent on Facebook and MySpace are private and do not need to be produced during discovery in a civil lawsuit. Furthermore, “wall postings” may be private depending on a user’s privacy settings. In other words, if Crispin had restricted his wall postings to be viewable only by his “friends,” his status updates would be considered private.

In at least three other cases, however, courts have ruled that wall postings are discoverable regardless of privacy settings, and have even concluded that e-mail communications sent over social networking sites may not be considered private. A notable similarity in these three cases was that the courts determined the information sought was particularly likely to be relevant to explore claims put at issue by the opposing party.

First, in Romano v. Steelcase Inc.,2 a personal injury action, the court allowed the defendant broad access to the plaintiff’s current and historical Facebook and MySpace pages to look for information inconsistent with the plaintiff’s claims concerning the extent and nature of her injuries. Having found relevant information on the public portions of these sites, the court deemed it reasonably likely that the private portions would be similarly useful. Like Crispin, this case involved analysis under the SCA. However, recognizing that Facebook and MySpace published privacy disclaimers, and that the stated purpose of such sites is sharing personal information, the court emphatically remarked that “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

A different court followed an almost identical line of reasoning in another personal injury case, McMillen v. Hummingbird Speedway, Inc.,3 and held that both the public and private portions of the plaintiff’s social networking sites were discoverable in order to disclose information as to whether he exaggerated his injuries. Finding no reasonable expectation of confidentiality or a need for privilege outside of attorney-client communications, the court ordered the plaintiff to preserve information contained on his social networking sites and to provide his user names and passwords to opposing counsel.

In Equal Employment Opportunity Commission v. Simply Storage Management, LLC,4 the Southern District of Indiana ordered production of Internet social networking site profiles and other communications from Facebook and MySpace accounts. In this employment discrimination case, the court expressly included in the meaning of “profiles” the postings, pictures, blogs, messages, personal information, lists of “friends” or causes joined that the user placed or created online through her account. Also, similar to Romano and McMillen, the court denied a party’s privacy claim barring the need for production where the party placed the emotional health of the particular claimants at issue. Presaging the sentiments expressed in Romano, the court stated, “Facebook is not used as a means by which account holders carry on monologues with themselves,” and held that content is not shielded from discovery simply because it is “locked” or “private.”

Interestingly, EEOC stands in contrast to McMillen and Romano on a key point. Rather than allowing broad access or requiring production of passwords, the EEOC court addressed concerns about relevance by calling on counsel “to make judgment calls – in good faith and consistent with their obligations as officers of the court – about what information is responsive to another party’s discovery requests. … Discovery is intended to be a self-regulating process that depends on the reasonableness and cooperation of counsel.”5

Finally, a unique case on the topic of social networking was issued by the Middle District of Tennessee in June 2010. In the case, Barnes v. CUS Nashville, LLC,6 the magistrate judge offered to create a Facebook account which would allow the witnesses to accept the judge as a “friend” for the sole purpose of reviewing photographs and related comments in camera. Following this review, the account would be deleted. In addition, the magistrate judge reviewed submitted materials from the plaintiff’s Facebook account and found one message, seven pictures and the accompanying metadata to be relevant to the case.

The overall trend of the judiciary seems to be moving toward greater permissiveness for ediscovery with regard to social media, as well as a strong likelihood that privacy concerns will be outweighed by the weight and relevance of the information. Consequently, as corporate use of social media continues to increase, counsel’s role should include advising clients on best practices for social media ediscovery, employee usage policies and corporate practices.

1 2010 WL 2293238 (C.D. Cal. May 26, 2010).

2 907 N.Y.S.2d 650 (Sept. 21, 2010).

3 No. 113-2010 CD (C.P. Jefferson Sept. 9, 2010).

4 270 F.R.D. 430 (S.D. Indiana 2010).

5 Id.; see also Mackelprang v. Fidelity Nat’l Title Agency, 2007 WL 119149 (D. Nev. 2007) (court declines to compel production but instructs defendant to follow ordinary discovery procedures to request relevant and not overly-prejudicial e-mail communications sent through social networking sites).

6 2010 WL 2265668 (M.D. Tenn. June 3, 2010).