Social Media: What's Discoverable in Litigation

For as long as people have been posting information to social networking websites, such as Facebook and Twitter, attorneys and litigating parties have been searching those sites for information and evidence to use in litigation. On the other hand, anyone who uses social networking websites has likely heard the warning that one should not post anything on those sites that he would not want his employer, teacher, or mother to see. Mindful of that admonition, many people adjust the privacy settings so that only their friends or followers can view some, or all, of their online profile and postings. What happens when these two storylines connect, and opposing parties in litigation seek discovery of information posted on social networking sites that is not publicly available, but only viewable by those given permission through the user’s privacy settings?

Is Anything Private Anymore?

Generally, a party can obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action; liberal and broad discovery is allowed. As such, a party can usually obtain discovery of information on social networking sites, even when the user has designated that information as “private.”

Many litigants try to find useful information about their adversaries on Facebook and Twitter, especially in cases involving domestic issues, personal injuries, insurance disputes, and employment issues. For example, a personal injury plaintiff may claim that he cannot engage in certain activities because of an accident, but there are photographs on social networking sites of him engaging in those very activities. Discovery disputes in these cases often arise when an opposing party sees information that is relevant to the parties’ dispute on the public portions of a social networking site and then seeks discovery of the private information, believing that relevant information is similarly contained therein. The courts that have addressed this issue generally find that litigants cannot hide behind their privacy settings to deprive an opposing party access to relevant information. After all, the purpose of such websites is to share information with others, and online privacy settings should not deprive a party of its right to a fair trial.

Thus, information that is designated as private is no more protected than, for example, a personal diary. Even posts and pictures that have been deleted may be discoverable. Courts have been mindful of several considerations in finding in favor of discoverability. For instance, posted information is intended to be shared, as mentioned above, even if the intended audience is small or controlled. In addition, as a practical matter, even with privacy settings, people with access could disseminate the information without consent from the poster. Sites like Facebook and Twitter have privacy policies in which users are warned that posted information may become public. Finally, courts have found that the Fourth Amendment’s right to privacy does not apply to information on social networking sites, notwithstanding privacy settings, because a party does not have a reasonable expectation of privacy in such information.

It’s All About Discoverability

However, discoverability in this circumstance is not without limitation. As with all discovery, litigants are not allowed to conduct “fishing expeditions,” and are not necessarily entitled to gain access to private social networking information simply by virtue of being in litigation. That is, a party cannot automatically request and receive online usernames and passwords in discovery as a matter of course. The information must still be otherwise discoverable, the party generally must have a reason to suspect that discoverable information is contained within the areas designated as private, and the requests must be reasonably specific. One recent case out of New York found that a defendant was not necessarily entitled to all the plaintiff’s Facebook information, but the decision turned on the fact that not all the information was relevant, and not on the privacy settings.

A few other discovery considerations are also worth mention:

First, litigants have an obligation to preserve information that is relevant to their dispute, and this duty is sometimes imposed before the litigation even begins. A party who deletes or materially alters relevant information can face severe sanctions for such spoliation. Thus, people who maintain social networking sites that are in litigation, or reasonably anticipate litigation, should be careful not to delete possibly relevant information from those websites.

In addition, a litigant seeking discovery of private social networking information can possibly gain access by subpoenaing such information from a third party (such as a Facebook friend) who has access to the private information via permission from the litigant and his self-selected privacy settings.

Finally, the North Carolina Rules of Civil Procedure have recently been revised (with the changes effective October 1, 2011) to specifically make electronically stored information, as well as the underlying metadata, discoverable. Time will tell if these rule changes affect discoverability of information from social networking sites, but conceivably they will, considering the popularity and expansion of such sites. Individuals simply have more electronically stored information that is potentially subject to discovery.

Post with Caution

As these issues play out, one thing is clear: the tension between discovery and privacy settings on social networking sites will not end soon. The few courts that have addressed the issue of discoverability of “private” information on social networking sites have found that the information is usually discoverable, but this is still an issue of first impression for many courts, including the appellate courts of North Carolina. Because of the way this issue has come down, parties would be advised to heed the warnings now more than ever: do not post anything on Facebook or Twitter unless you want the world—and adversary litigants—to see it, regardless of your self-selected privacy settings.