Date: January 21st, 2011

Information contained on social media sites such as Facebook and MySpace continues to be a hot button issue for lawyers and courts. It is becoming more and more common for parties in a lawsuit to demand that the opposing party produce their username and login information for their social media accounts. Information and posts on an individual’s Facebook, Twitter, or MySpace page can significantly advance or halt a party’s case and can weigh heavily on a witness’s credibility, reveal inconsistent statements, and call into question the extent of a claimant’s injuries or damages.

Imagine for example a personal injury claimant who is claiming to be injured or depressed but then, lo and behold, there are photos on her Facebook page of her swimming, skiing, smiling, and thoroughly enjoying all that life has to offer! You can imagine how badly a defense attorney would want to be able to access and use those photos.

When access to social media sites is requested from an individual in a lawsuit, the individual often refuses to reveal such information citing privacy concerns. However, recent court decisions are rejecting such privacy arguments and are ruling that online profiles are fair game.

September 21, 2010 – In Romano v. Steelcase, the court ordered a plaintiff to produce her Facebook and MySpace profiles. Romano sued Steelcase for personal injuries she allegedly sustained when she fell out of her office chair. She alleged that as a result of the fall she injured her neck and back, suffered “pain and progressive deterioration with consequential loss of enjoyment of life,” and could no longer take part in different activities. However, her MySpace and Facebook accounts revealed a different story, showing that she had traveled to Florida and Pennsylvania during the time she claimed her injuries prevented her from doing so. Steelcase requested copies of Romano’s Facebook and MySpace profiles. Romano argued that releasing information she had designated “private” on her accounts would give Steelcase access to “wholly irrelevant information as well as extremely private information.”

The New York court rejected Romano’s privacy concerns, stating that she lacked a reasonable expectation of privacy because neither Facebook nor MySpace guarantees complete privacy and that she had consented to her personal information being shared with others. The court stated that precluding Steelcase from accessing Romano’s profiles would “condone [her] attempt to hide relevant information behind self-regulated privacy settings.”

September 9, 2010 – A Pennsylvania court came to a similar conclusion 11 days earlier. In McMillen v. Hummingbird Speedway, Inc., McMillen sued Hummingbird Speedway for personal injuries he allegedly sustained when he was rear-ended during a car race. Public portions of McMillen’s Facebook and MySpace accounts indicated that he may have exaggerated his injuries. During the discovery phase of the lawsuit, Hummingbird asked McMillen to provide all of his login information for both sites so that Speedway could access the non-public portions as well. McMillen refused to provide the information.

Hummingbird asked the court to order McMillen to provide all of the access information for his Facebook and MySpace profiles. McMillen argued that he should not have to disclose his “private” communications. The court rejected his privacy arguments, refusing to recognize an evidentiary privilege for “private” social media communications. The court ruled that, unlike the attorney-client or doctor-patient privilege, there is no “social media privilege” and ordered McMillen to produce his Facebook and MySpace usernames and passwords.

May 11, 2010 – In EEOC v. Simply Storage Management LLC, on May 11, 2010, an Indiana court held that relevant material is not “shielded from discovery simply because it is ‘locked’ or ‘private.’” “[M]erely locking a profile from public access does not prevent discovery.” This case involved claims of “severe emotional distress.” And, as a result, the court permitted discovery into any profiles, postings or messages that “reveal, refer or relate” to any emotional feeling or mental state, or any communication that could reasonably be expected to “produce a significant emotion, feeling or mental state,” and instructed the EEOC to “err in favor of production.”

Using social media sites is a great way to keep in touch with friends, reconnect with past friends, and meet new people. But for lawyers – especially for IP, corporate, and employment lawyers – social media sites are drastically changing the scope of discovery. While MySpace, Facebook, and Twitter let users set privacy levels to restrict access their postings, courts are rejecting users’ privacy arguments and requiring the information be produced. This is in large part due to the fact that these sites’ privacy policies explicitly state that they may disclose any user information in response to valid subpoenas and court requests. And, just like e-mails, that includes information that has been “deleted” since such information is never really gone.

Given these new methods of communication and rejection of privacy concerns, companies, employers, and employees alike should use such sites cautiously and appropriately and understand that, for better or worse, nothing is truly private. It is extremely important for companies to have technology use policies and training in place that relate to social media and other types of technology to make sure these forms of communication are being used in appropriate ways and not harming the company. For a more general discussion of documents in the digital age, please click here.