Private Facebook Pages May Be Discoverable

Guest post by James Goslee.

Facebook is becoming a pretty scary place for litigation attorneys. Not because many of us still don’t know what it is or how to use it – but because our clients do.

Facebook pages are nearly mandatory for young adults these days. They’re sort of like the 1990s version of cell phones – you’re not cool unless you have one. Although I’m told this new era of social networking has a number of positives, it also carries significant risks — particularly in litigation. Lawyers need to instruct their clients that the content that they share (even if they use privacy filters) may very well be used against them.

Nationally there hasn’t been much case law governing when Facebook content may become discoverable during litigation. Odds are this lack of precedent will be short lived. With the remarkable lack of discretion (or modesty) exercised by many Facebook users, wily lawyers are increasingly looking for ways to access private postings in order to use it against their adversaries. Naturally, these efforts are being met with resistance.

Pennsylvania is one of the states on the forefront of Facebook discovery disputes. Although no appellate court has decided when private Facebook content is discoverable, the State’s trial courts have developed a logical approach for dealing with the issue. The majority of courts have required the party seeking private content to make a threshold showing that their adversary’s public Facebook profile includes content relevant to the case. (See, McMillen v. Hummingbird Speedway, Inc. and Zimmerman v. Weise Markets, Inc.). If they can make this showing, the door is then opened for access to private information.

A New York appellate court followed similar logic in a personal injury case last fall. In Patterson v. Turner, a trial court in New York ordered a plaintiff to make his private Facebook content available to a defendant, even though there was no showing as to how this material was relevant. The First Division Appellate Court rejected this approach. It agreed that “postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access.” However, it remanded the case back to the trial court with an instruction to make “a more specific identification of plaintiff’s Facebook content that is relevant.”

Just recently a federal court adopted the relevancy threshold to resolve a Facebook discovery dispute. In Davids v. Novartis Pharm Corp. (E.D. NY 2012), a New York magistrate judge refused to grant access to a plaintiff’s private Facebook content because her public profile did not contain relevant evidence.

This relevancy threshold makes sense from an evidentiary perspective. Because only relevant evidence is admissible, a party seeking private content should arguably have to provide some basis for why it’s material. This is particularly true because Facebook pages frequently contain pictures and information that would be extremely embarrassing if it fell into the wrong hands. Requiring relevant public content provides at least some protection.

The relevancy rule also has an added benefit of being easy to understand and advise clients about. As long as you tell your client not to post any public material on Facebook (or better yet, not to post at all) you should be safe. Alas, because life and litigation would be boring if it were easy, a very recent ruling has made things a lot more complicated.

In Gallagher v. Urbanovich, Nick Gallagher sued Matthew Urbanovich in Pennsylvania, claiming Urbanovich hauled off and punched him in the face during an intramural soccer game. That probably hurt, but Gallagher may have gotten the last laugh. During discovery Gallagher’s lawyer filed a motion requesting Urbanovich’s Facebook log-in and password information. The Judge granted this request, despite the fact that there was no evidence that Urbanovich’s public profile contained relevant information.

The Gallagher ruling should be a frightening development for any lawyer with a client using Facebook. If Facebook discovery really has become the Wild West, there is a very serious possibility that anything and everything a client decides to post is fair game for your adversary. And if you don’t see this as a problem, you haven’t seen what goes on at Facebook!

James P. Goslee is an associate with the law firm of Cohen, Placitella & Roth, PC and focuses his practice on personal injury, medical malpractice, subrogation, commercial litigation and securities law.

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  • Thompkins v Detroit Metropolitan Airport, US E.D. Mich (Jan 2012) is another one- where the Court held the party seeking the FB discovery had to make a showing of relevance:
    “If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence. McCann, supra, 78 A.D.3d at 1525 (“Although defendant specified the type of evidence sought [access to plaintiff’s Facebook account], it failed to establish a factual predicate with respect to the relevancy of the evidence.”). Moreover, the request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad.”