When Your Facebook “Wall” Comes Tumbling Down
By: EMILY E. DUKE
April 2011
Many users of social networking sites such as Facebook think of their postings as being just between them and their “friends.” Because many people “friend” co-workers and acquaintances, chances are that if anything relevant to litigation appears on a party’s social networking page, their opponent will catch wind of the post and ask for their entire page. Some or all of a party’s social networking page may be protected by Rule 26, the Stored Communications Act, or state privacy laws, but if there is something posted that touches on the issues in the litigation – be prepared to see that post broadcast in open Court. For example, in a workers’ compensation case, if a party claims to be home-bound and unable to work, but posts photographs on their wall showing that they are active and not, in fact, home-bound, that post, and possibly the entire “wall” or page will be subject to discovery.
Courts evaluating at the discoverability of Facebook and other social networking posts look at several factors when deciding whether a party must authorize the release of some or all of their social network posts, including photos. First, the party seeking discovery of the party’s social network page must make a basic showing that the site is likely to contain discoverable evidence. Second, if the party seeking to protect his/her content as “private,” and asks for protection to avoid “annoyance, embarrassment, or oppression,” the court may look at the site’s privacy policy and the party’s privacy settings to determine whether the posts are protected under Rule 26, the Stored Communications Act, or state law. Third, the court will weigh any privacy rights against the opposing party’s need to obtain this unique form of electronically stored information (ESI).
Many social networking sites have policies that explicitly state that the privacy of user content is not guaranteed. In other words, the user has no expectation of privacy in his posts, even if he only allows direct “friends” access to the information. This makes sense because any “friend” can share the information with others – if not directly through the default settings, but through mere repetition of the information. To the extent that a party’s social networking page has information totally unrelated to the litigation, courts have broad discretion to fashion protection of the disclosure of private, irrelevant information. But in order to do so, some courts have required the party to “friend” the Judge so that s/he may look at the page in camera (i.e., without showing the other party) to decide whether some or all of it must be turned over in discovery.
The bottom line? Social networkers beware – what you think is just between you and the wall, may become a matter of public record.