Discover Facebook, it's case law!

A Pennsylvania court recently ruled that postings on Facebook pages are discoverable.  The court ordered the plaintiff to provide their user name and password to allow production of posted information. Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011) includes an opinion from Judge Richard J. Walsh discussing social media electronic discovery. 

The opinion discusses the following objections made by the plaintiff:

1. Relevancy and discoverability. The Court found that "it is clear that material on social networking sites is discoverable in a civil case."
2. Privacy.  According to the court, no privacy privilege exists for social media: "No court has recognized such a privilege, and neither will we." When you share information with third parties, such as is the case on Facebook, you waive any expectation of privacy for the information you are posting. Judge Walsh explained that "[o]nly the uninitiated or foolish could believe that Facebook is an online lockbox of secrets."
3. Stored Communications Act. The Court found that the Stored Communications Act could not apply to Facebook posts because the information was not sought from a third party, but directly from the composer. The SCA protects ISPs and similar electronic information and communication storers and distributors.  Because there is no duty owed by the requested party to the composer, the Act cannot apply. 
4. Overbroad and Harassing. Finally, the court determined that the request was no more harassing than requesting personal mail, and, in fact, less burdensome than other discovery because the requesting party would perform the work necessary for production and bear the cost of production.

The court made an important distinction in this case in a footnote. The facebook account holder once had her profile public AND other discovery and/ or investigation revealed that there was discoverable material in the facebook account. The court noted that discovery of social media content should not be ordered in the regular coyrse of discovery, and absent indication that discoverable material exists on the Facebook page, the deciding court should weigh more heavily on potential social implications to the Facebook holder, such as annoyance and embarrassment.

Today, we use social media for a number of purposes, including personal connection, networking, venting and for comedic relief. We are infinitely connected to our world in a way that allows for uncensored thoughts to be mass communicated.  Even worse, we sometimes share the thoughts we don't share face-to-face or by phone and have an artificial expectation that those published thoughts somehow remain confidential with those in our friends list.  Those are the details conventional discovery and depositions often don't delve into, and those may be the most useful and relevant parts of a case.

So, how can you get information from Facebook? The individual who owns the Facebook page can request a PDF of all Facebook content be emailed to their private e-mail account (must be the email account registered with Facebook).  Here's how to get there:

1. Go to "Account Settings" under the pull down menu at the top right of the Facebook screen.
2. Click on "Download a copy of your Facebook data."
3. Click "start my archive."

This process will download all posts and uploads, even those that have been deleted (I am told).  So, if you send a Request for Production, do not fear evidence tampering!  I suggest you attach these instructions to your discovery request to the party or witness.

If you receive a discovery request for your client's Facebook download, ask the requester to narrow the request to certain keywords, then redact the rest of the PDF before production.

This is a very good lesson that you should be very careful about what you post and upload to your own Facebook and other social media pages. They can follow and haunt you forever!