The social network is fair game for discovery

Anybody with a pulse, a computer, and a connection to the internet has heard the warnings: be careful what you post on Facebook, MySpace, and other social network sites. That blow-by-blow account of your victory in the Tenth Intramural Beer Pong Championship can come back to haunt you. Those pictures of you clothed only with red Solo cups may be hysterical to your friends but not so amusing to your future potential employers. As the New York Times reported today, employers fire people for griping about their jobs on their Facebook pages.

We did a post a couple of years ago recommending that defense counsel seek discovery from plaintiffs’ social network sites. At that time, we found just one case in which the discoverability of that information had been litigated.

Thanks to Dan Cummins' "Tort Talk" blog, we just learned of another case: McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. Ct. Com. Pl. Sept. 9, 2010). (There may have other cases since then. We are the Drug and Device Law blog, not the social network law blog.)

Plaintiff McMillen sued for injuries allegedly sustained when he was rear-ended at the end of a stock car race. He claimed, among other things, that the injuries caused him permanent impairment, loss of strength and vitality, and inability to enjoy certain pleasures of life.

During discovery, defense counsel sent plaintiff interrogatories asking if he belonged to any social network sites and for his user names, login names, and passwords. McMillen said he belonged to Facebook and MySpace but refused to provide the other information. Defense counsel checked the public portion of McMillen’s Facebook page and found comments about going on a fishing trip and attending the Daytona 500, which showed he was enjoying at least some of the pleasures of life. Defense counsel thought there might be even better stuff in the areas not publicly available and moved to compel.

McMillen asked the court to recognize that communications among friends on social network sites are confidential and protected from disclosure. In other words, the court reasoned, he asked for the recognition of a social network site privilege.

We might have responded: C’mon, Dude, everyone knows that what you tell or write your friends may come out some day. You knew that when your best bro told everybody about that problem in your nether regions. And when your teacher intercepted the note you passed in class, you never would have thought to object on privilege grounds before she read it to the class. Nor could you do anything when the cops squeezed your roommate and he told them where you said your stash was. So why should what you tell your friends in Facebook posts be protected from disclosure when what you tell your friends in other ways is not?

Judge Foradora took the more thorough approach of a court of law to reach the same result. The court first reasoned that the information was discoverable unless privileged and concluded that the “social network privilege” did not satisfy the standard for recognizing a new evidentiary privilege. One element of that standard is that the communications must have originated in the confidence that they would not be disclosed, and the court found ample evidence in the policies of Facebook and MySpace warning that postings were accessible at least to the operators of those sites and might be shared by the poster’s friends:

When a user communicates through Facebook or MySpace, however, he or she understands and tacitly submits to the possibility that a third-party recipient, i.e., one or more site operators, will also be receiving his or her messages and may further disclose them if the operator deems disclosure to be appropriate. That fact is wholly incommensurate with a claim of confidentiality. Accordingly, McMillen cannot successfully maintain that the element of confidentiality protects his Facebook and MySpace accounts from discovery.

2010 WL 4403285. The court also found the law does not recognize a privilege for friend-to-friend communications and that such a privilege was not necessary to foster friendships:

Friendships nonetheless abound and flourish, because whereas it is necessary to guarantee people that their attorneys, physicians, and psychologists will not disseminate the substance of their discussions in order to encourage the type and level of disclosure essential to those professional relationships, history shows that the same guarantee is not necessary to encourage the development of friendships.

Id.

After reasoning that whatever harm resulting from disclosure of social network posts was outweighed by the benefits of having information available for the correct disposition of litigation, the court concluded:

Where there is an indication that a person's social network sites contain information relevant to the prosecution or defense of a lawsuit, therefore, and given [a prior case’s] admonition that the courts should allow litigants to utilize “all rational means for ascertaining the truth,” and the law's general dispreference for the allowance of privileges, access to those sites should be freely granted.

Id. (citation omitted). The court ordered plaintiff to provide his user names and passwords, directed him not to delete or alter existing information and posts, and granted defense counsel read-only access to the plaintiff’s accounts.

Perhaps Facebook should amend its privacy statement to include a Miranda warning: what you say on your Facebook page can and will be used against you in a court of law.