From a very recent court opinion: “Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster. Nonetheless, a court may compel production of a party’s Facebook information if the party seeking disclosure makes a threshold relevance showing.”
You think? Well, sometimes, but not always. Traditional discovery rules and jurisprudence remains helpful in such inquiries.
The quote above is from Higgins v. Koch Development Corp., No. 3:11–CV–81–RLY–WGH (S.D. Ind. July 5, 2013).
Note: That opinion was released on July 5, which was a Friday, if you recall. Someone didn’t take a three day weekend, apparently.
The fact of the case were these: In 2009, the Plaintiff’s visited a water amusement park. One of the attractions at the park, the “Bahari River,” had “muratic acid and liquid bleach filtered into the water by a filter pump that was connected to a breaker.” The Plaintiffs alleged that they suffered toxic chemical injuries and pulmonary problems as a result of improper maintenance of the filters and pumps.
At their depositions, the Plaintiffs confirmed the existence of their Facebook pages (of which defense counsel was no doubt previously aware). Interestingly, the Plaintiffs agreed to capture and preserve their complete profile history using the “Download Your Information” function (although they apparently did not produce this information to the defense, which prompted a motion to compel). The opinion does not reveal when they actually preserved the information – whether it be in the deposition room itself or sometime later. In refusing to produce the Facebook data, the Plaintiffs invoked the traditional arguments (overbreadth, irrelevance) but also argued that the production of the data would violate the privacy rights of non-parties whose images became part of the Plaintiffs’ profiles via tagging.
The court quickly disposed of the relevance objection, noting that the specific claims made by the Plaintiffs in the lawsuit made the information contained on their social media profiles relevant indeed. As the court observed, “Koch claims that [Plaintiffs'] Facebook content may reveal relevant information as to the extent their injuries have impacted their enjoyment of life, ability to engage in outdoor activities, and employment, along with their claims regarding permanent injuries, lack of pre-existing symptoms, and impairment of future earnings capacity. Since the extent of [Plaintiffs'] losses in these areas directly impacts the appropriate damages award, the court finds this information relevant.” No surprise there, especially if the Plaintiffs used Facebook as much as the opinion suggested they do.
Sophisticated as to Facebook’s privacy settings, the Plaintiffs also claimed the request violated their privacy rights (as they had made their profiles as private as Facebook allows them to be). This is argument, of course, is particularly weak, as Plaintiffs clearly put their lifestyles at issue in bringing the suit and alleging those damages, and thus, the mere fact that they have shielded relevant data using Facebook’s privacy settings does not relieve them of an obligation to produce relevant information. In rejecting Plaintiffs’ argument on these grounds, the court noted that Plaintiffs “cite[d] no cases supporting the proposition that setting a Facebook profile to ‘private’ entitles a person to a greater expectation of privacy or can act as a shield to discovery.”
This, of course, leaves us with the most interesting argument Plaintiffs made: that the request violated the privacy of non-parties. You’ve got to give the Plaintiffs’ lawyers points for creativity on that one. Essentially, Plaintiffs argued that their friends – other Facebook users – posted comments on Plaintiffs’ Facebook walls or appeared on Plaintiffs’ Facebook timeline by being tagged in photographs or posts in which Plaintiffs were also tagged. Unpersuaded, the court characterized this argument as “unfounded,” citing another court which had already reached the conclusion that tagged photographs are discoverable if relevant because “once the plaintiff was tagged in the photos, they became in the plaintiff’s “possession, custody, or control.”
Clearly, this is the right result. In light of the resistance the Plaintiffs exhibited in producing these profiles, we suspect there is some good impeachment available for the defense to find.