II. Compelling the User to Produce Social Media Content

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, information is discoverable so long as it is relevant to the litigation, claim or defense,[1] and courts have consistently allowed for discovery of relevant information from social networking sites in both criminal and civil litigation.[2]  When requesting Facebook information from an opponent, parties will not be granted access simply to engage in proverbial fishing expeditions just because they hope to find something of relevance.[3]  Whether or not a court can require a party to produce social media content depends primarily on whether the request for information is reasonably calculated to lead to discovery of admissible evidence.[4]

Although a party may have selected privacy settings to limit disclosure of posted content, courts have been recently asked to determine the proper scope of social media discovery when users have a certain expectation of privacy over protected content.[5]  In determining whether to compel access to “private” content, some courts have held that parties lack any reasonable privacy expectation for information published on social media sites, even if a party has hidden the content from the public, while others held that certain social media content is inherently private when it is not accessible to the general public.[6] Finally, some courts have taken a different direction by creating unique solutions tailored to specific cases in an attempt to balance discoverability and privacy without attempting to establish binding precedent.[7]

The seminal case that held “private” social media content was discoverable is E.E.O.C. v. Simply Storage Management.[8]  The EEOC, on behalf of two female employees, objected to producing social media communications on the grounds that the content was private and discovery would violate the victims’ privacy rights.  The court held that a party “may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense,” ignoring the impact of privacy settings given that social media content is not shielded from discovery simply because a user “locks” it or makes it “private.” ^[9] Instead, the court said it would consider privacy concerns to the extent discovery requests are burdensome, oppressive or sought for an improper purpose; merely “locking” a profile through privacy features does not prevent it from being discoverable.[10]  While acknowledging private social media content may include sensitive personal information that could be embarrassing, the court said that disclosure of such information was inevitable when suing to recover for personal injuries resulting from claims of sexual harassment.[11]  The court also held that their “concern [wa]s outweighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings.” [12] 

Similarly, in Romano v. Steelcase Inc., the court held that a plaintiff lacked a reasonable expectation of privacy for information published on social media sites. [13]  In Romano, the plaintiff claimed that she could no longer participate in certain activities, which placed her physical condition in controversy.  During her deposition, however, public portions of her Facebook profile revealed that she was still participating in those activities. As a result, the defendant requested that the plaintiff execute written authorizations for full access to her profiles. The plaintiff refused on account of her “right to privacy.” [14]  The court ultimately allowed the defendant to access private portions of her profile because of information that the plaintiff had posted on public portions of her profile contradicted her claims, and the court noted that the private portions likely contained more information relevant to the defendant’s defense.[15] The court held that the plaintiff’s self-selected privacy settings would not prevent access to her private postings, finding it did not violate her right to privacy.[16]

Similar to the court in Simply Storage, the Romano court found that the plaintiff could not have a legitimate expectation of privacy when she voluntarily shared the content on Facebook.[17] Accordingly, the court said no one has a “reasonable expectation of privacy” by choosing to post on their Facebook or MySpace profiles for the world to see. [18] Additionally, because each site had a privacy policy disclosure that warned users that information posted on their profiles might become publicly available; plaintiff lacked any legitimate expectation of privacy having consented to sharing her personal information with others notwithstanding her privacy settings.[19] The court rejected the plaintiff's privacy objections as “wishful thinking” and ordered her to execute an authorization permitting the defendant to “gain access to plaintiff's Facebook and MySpace records, including any records previously deleted or archived.” [20] 

Essentially, according to Simply Storage and Romano, a person who voluntarily publishes information on a social media site cannot have a “reasonable” expectation of privacy in such content; merely “locking” a profile with privacy features does not prevent it from being discoverable.[21]  Furthermore, any “subjective” expectation of privacy would be lost upon transmission to “friends” and otherwise nullified by the social media site's privacy disclosures.[22] Thus, under this line of cases, even “private” social media content is discoverable.  Regardless of whether an individual has an expectation of privacy, the purpose of discovery is to yield information that is relevant to the issues in dispute.  Therefore, it is proper for courts to be able to reach relevant content, albeit carefully, despite a litigant’s attempts to withhold such content.  Otherwise, privacy settings would effectively render compliance with discovery rules optional – to be exercised at the discretion of the party seeking to hide the content.   

In contrast, other courts have held that “private” social media content can be shielded from discovery,[23] with discovery of access-restricted content posted on a Facebook page requiring a threshold showing that the information is reasonably calculated to lead to the discovery of admissible evidence.[24] Even where the Simply Storage and Romano courts held that “private” content was discoverable and the plaintiffs were required to provide access to the content, there have been other cases where such content has been shielded from discovery because no evidence in the public profile revealed a contradiction to the alleged injuries or claimed damages.[25] 

The seminal case which held that social media content “limited from public view” is entitled to a certain degree of protections is the January 2012 opinion in Tomkins v Detroit Metropolitan Airport. In Thompkins, the plaintiff alleged that she suffered physical back injuries and her ability to work and enjoy life was impaired.[26] The defendant requested authorization for the release of all Facebook account records, including sections designated as private and not available for viewing by the general public.[27]  The court noted that “material posted on a private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public is generally not privileged, nor is it protected by common law or civil law notions of privacy.¹” [28] In endnote 1, the judge added, “. . . nor do I decide whether a direct subpoena for such material to Facebook could be challenged under the Stored Communications Act. . .”[29]  However, the court did note that it did not confer “a generalized right to rummage at will through information that Plaintiff has limited from public view.”[30] Therefore, in balancing these competing considerations, the court concluded that pursuant to Federal Rule of Civil Procedure 26(b), there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.[31]

Finally, when balancing privacy with discoverability, some courts have created unique solutions that seek to balance each party’s interest.[32]  For example in Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, the defendant subpoenaed a slip-and-fall plaintiff and her friends’ Facebook pages for any messages or photographs that discussed or depicted the plaintiff dancing on top of the bar prior to her injuries.[33] When the parties could not reach an agreement on the scope of the social media discovery request, the judge created his own Facebook account solely for the case.[34]  In his chambers he reviewed the pictures, captions, and related comments and posts, in camera, to then provide the parties with the pictures that the judge deemed relevant to the case; storing the material under seal pending their use at trial.[35]

Another example of the court arriving at a unique solution was in Gallion v. Gallion.[36] In Gallion, the court ordered each lawyer that represented a party in a divorce proceeding to exchange passwords to their clients’ Facebook and dating website profiles.[37]  The court then provided counsel with specific instructions to ensure that each party would not obtain access to the other’s personal online information.[38]  This procedure was intended to allow the lawyers to discover relevant information without exposing the clients to the embarrassment associated with providing it to their ex-spouse directly.[39]

Barnes and Gallion are both examples of judges offering their own creative “solutions” in an attempt to resolve the tension between privacy and discoverability; however, this type of creative solution-making instead creates a blurred line between the two.[40]  Creativity does not promote uniformity.  Therefore, it is less desirable for courts to engage in this type of creative problem-solving because it is more advantageous for courts to use existing rules to resolve this tension, even if courts initially struggle in doing so.  The alternative to uniformity through application of existing rules, while it may be convenient in catering to the individual circumstances of each case, does not offer a sustainable approach that ensures long-term and overall fairness.

Given the current scarcity of reported decisions and the likelihood that discovery of information from social networking sites will become increasingly common, litigants will be calling upon courts to determine how discovery principles should apply to information sought from social networking sites.[41] As such, the body of jurisprudence will soon increase to better ensure uniform application of existing rules to social media evidence.  Courts have been balancing the competing interests of permitting discovery of relevant evidence and preventing excessively intrusive and unwarranted fishing expeditions into an individual’s online activities long before social media content existed.[42]  In the past, courts seem to have struggled with the impact of privacy settings and only recently have courts been holding that privacy settings are irrelevant to shield content from being discovered.  Therefore, I feel that no new rule is necessary to address the discoverability of social media evidence.  Never before has a court required parties to produce non-public information simply because such information exists, and I agree with the competing interests articulated in Thompkins:

“. . . Defendant does not have a generalized right to rummage at will though information that Plaintiff has limited from public view.  Rather, consistent with [Fed. R. Civ. P.] Rule 26(b) and with the cases cited by both Plaintiff and Defendant, there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence.”[43]

The Thompkins court essentially held that a plaintiff could not be compelled to disclose content simply because the content existed.  This holding comports with the existing applications of discovery rules. Essentially, a plaintiff who has chosen to not share information publically will continue to enjoy some protection over that private information, because no party has ever gained a generalized right to rummage through information simply because of knowledge that the information existed.  However, a plaintiff who chooses to post content publically cannot enjoy the same protection.  Existing rules of discovery have always required that a party state with reasonable particularity the relevant information that is being requested and from where is the information sought from.  Owning a Facebook page, by itself, does not provide a sufficient basis to allow a party to gain access to its otherwise private content.      

Additionally, by requiring access to social media content be granted as part of the regular discovery process, courts need not be bound by, or need to address the SCA.[44]  Unlike requests made directly to social network providers, standard discovery requests directed at a party need only to conform to existing rules of civil procedure.[45]  In one case, a plaintiff who cited the SCA in opposition to a request for access to social media content was still compelled to disclosure without any discussion of the SCA by the court in the decision.[46]  As such, it has become clear that the increase in judicial discretion over social networking discovery will prove to be far more challenging for plaintiff’s counsel than for most defense counsel.[47]  Parties seeking the content need only show that their request has been reasonably calculated to produce relevant information under the existing rules of civil procedure.  On the other hand, requests made directly to Facebook can be outright denied because of the SCA, thus preventing disclosure of even the most relevant content.  This is one example of how existing rules can be adequately and fairly applied to social media evidence, providing litigants with the same judicial discretion that is otherwise offered to determine the discoverability of any other type of electronic evidence.