Facebook Discovery and the Unbearable Sameness of Internet Law

Oversharing: Facebook Discovery and the
Unbearable Sameness of Internet Law
Bruce E. Boyden ∗
I. INTRODUCTION
Social-media networks have resulted in the oversharing of
information. Too many people, confronted with the ability to
share information with others via social networks, readily avail
themselves of that opportunity, causing personal information to
be shared from Facebook or Twitter accounts with little care as
to its relevance or privacy. These people need to be reminded
that there are rules about how much information must be shared,
and with whom—rules that served a prior generation just fine
and continue to govern the Internet, even if they seem oldfashioned.
I am speaking, of course, of judges.
Judges are obviously not the only ones struggling to
determine what the rules are—legal or social—when it comes to
social networks such as Facebook. The changes wrought by
modern technology and their concomitant effects on social and
legal practices have bemused and bedeviled judges, lawyers,
legislators, businesses, and ordinary individuals for the past two
decades. The rise of social-networking sites is only the latest
development in that brief history. 1 The ease with which
∗ Assistant Professor, Marquette University Law School. B.A., Arkansas, 1991; M.A.,
Northwestern, 1993; J.D., Yale, 1997.
1. For an overview of the rise of social-networking sites, see generally danah m.
boyd & Nicole B. Ellison, Social Network Sites: Definition, History, and Scholarship, J.
COMPUTER-MEDIATED COMM., Oct. 2007, http://jcmc.indiana.edu/vol13/issue1/boyd.
ellison. html; James Grimmelmann, Saving Facebook, 94 IOWA L. REV. 1137, 1144-49
(2009); Evan E. North, Comment, Facebook Isn’t Your Space Anymore: Discovery of
Social Networking Websites, 58 U. KAN. L. REV. 1279, 1284-86 (2010). Although the first
recognizable social network, SixDegrees.com, launched in 1997, it was not until 2002 and
the launch of Friendster that social-networking sites began to become a cultural force. See
boyd & Ellison, supra. Friendster recently closed its doors, see Jenna Wortham, Social
Site to Erase Early Posts, N.Y. TIMES, Apr. 27, 2011, at B1, having been overshadowed in
the interim in the United States by the overwhelming popularity of Facebook, which was

40 ARKANSAS LAW REVIEW [Vol. 65:39
information can now be collected, distributed, and stored is
leading to a truly revolutionary shift in the power and
capabilities of individuals and small businesses. 2 But
technological revolutions disrupt both limitations and
protections alike. The same changes that expand the reach of
ordinary individuals are also leading to the increased
documentation of every aspect of their lives.
The disruptive effects of these changes are real, and
examples of individuals, companies, and courts that ignore them
are well known. But it is possible to overcompensate for
technological change. The meme that everything on the Internet
is startlingly different has become so engrained that it is actually
fairly common for people to miss instances where the fact that a
transaction or communication occurs on the Internet, or using
computers, is of no significance at all. In the legal world, there
are numerous examples where the standard rules developed over
the course of the twentieth century work just fine when applied
to the Internet.
Call these “Law of the Horse” cases. The term is derived
from Judge Frank Easterbrook, who in 1996, the dawn of the
Information Age, decried efforts to develop new laws and legal
doctrines to govern the Internet as akin to trying to define a “law
of the horse”—that is, a compilation of all laws and cases in
which a horse was involved. 3 There would be no coherence to
such a subject; and so it was, Easterbrook argued, with the
nascent subject that devotees were already calling “the Law of
Cyberspace.” 4 A field of study defined only by the fact that its
cases involved the Internet and that its statutes applied to
Internet activities would be a confusing mélange of materials. 5
Worse, Easterbrook argued, in attempting to invent new law
without a good sense of what new law is needed, or why, there
is the risk of doing more harm than good. 6
launched in 2004 and slowly rolled out to the general public by 2006. See boyd & Ellison,
supra.
2. See William Jeremy Robison, Note, Free at What Cost?: Cloud Computing
Privacy Under the Stored Communications Act, 98 GEO. L.J. 1195, 1197-98 (2010).
3. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL
F. 207, 207-08.
4. See id.
5. See id.
6. See id. at 215-16.

2012] OVERSHARING: FACEBOOK DISCOVERY 41
If Internet law is to be a useful subject, then its focus must
be on something other than just how modern legal disputes
sometimes involve the Internet. One alternative might be a
substantive focus; to study, as telecommunications law does, just
those statutes that regulate Internet-only transactions: domainname
regulation, 7 anti-spam laws, 8 web-host immunities, 9 and
more. But there are broader themes within the development of
law over the past decade and a half since Easterbrook’s article
that might also be worth attention. Another profitable focus
might, therefore, be methodological: Internet law can be seen as
a special case study of how law changes, or should change, in
response to changes in technology.
The issue of discovery of social-networking communications
in civil suits provides a useful example of the methodology
of Internet law and illustrates some of the hazards of getting it
wrong. There are at least two types of inquiry one might make.
One is the normative question, from the perspective of a
legislator or perhaps a judge with discretion to adopt a new rule,
of whether the law should change in response to technological
changes. Another is the interpretive question of how best to
read and apply existing law to a new set of facts that do not fit
well within it. The key step in both is to determine whether a
given technological change has materially altered either the
underlying behaviors or the effectiveness of the law in
regulating them. If so, the lawmaker may want to alter the law
to bring it back in line with its objectives; and the interpreter of
the law may need to make his or her reading of the law either
more restrictive or more expansive to keep it within its original
bounds. But if a change in technology has not materially altered
the way the law operates, then tinkering with the law is not only
unnecessary, it may disrupt careful balances that the rule had
7. See, e.g., Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)
(2006); Uniform Domain Name Dispute Resolution Policy, INTERNET CORPORATION FOR
ASSIGNED NAMES AND NUMBERS (Oct. 24, 1999), http://archive.icann.org/en/udrp/udrppolicy-24oct99.htm.
8. See, e.g., Controlling the Assault of Non-Solicited Pornography and Marketing
Act of 2003, 15 U.S.C. §§ 7701-7713 (2006).
9. See, e.g., 17 U.S.C. § 512 (2006) (granting conditional immunity to websites for
the infringing acts of users); 47 U.S.C. § 230(c)(1) (2006) (providing that no ISP shall be
treated as the “publisher or speaker of any information provided by another information
content provider”).

42 ARKANSAS LAW REVIEW [Vol. 65:39
achieved without anyone fully realizing it. There is danger,
then, in “Law of the Horse” cases; not the oft-cited danger of
blindly staying the course in turbulent weather, but the more
subtle risk of turning too abruptly away from the storm into
uncharted waters.
Social-media discovery is an example of the challenges of
Internet law. Social media are part of a growing trend of the
increasing documentation of the daily lives of individuals. 10
Through Facebook, Twitter, and other similar services, users can
share a variety of materials with friends or acquaintances of their
choosing, including tasteless jokes, updates on their love lives,
poignant reminiscences, business successes, petty complaints,
party photographs, news about their children, or anything else
they choose to disclose. Users can broadcast such information
to several hundred recipients at once, or send more targeted
communications to particular friends. Thus, Facebook and its
ilk allow an individual to self-report a more or less permanent
record of his or her daily activities, and even his or her thoughts.
Moreover, those thoughts are often unfiltered, since they are
intended only for “friends,” and the idiom for social-networking
posts seems to encourage sarcasm, humor, cynicism, or anger,
none of which translate well into other contexts. 11 Ordinary
individuals are just starting to come to terms with the
implications of this, however. As business litigants have known
for quite some time, such documents can prove a lucrative area
for discovery in any dispute. 12 Individuals, too, have been
surprised by the extent to which technology has changed the
practical realities of litigation for them.
Attorneys and courts have themselves made two sorts of
errors in adapting to this new situation—one a “false negative”
and the other a “false positive.” The first error sometimes made
10. See, e.g., Cindy Rich, Secret Life of Teens: “Coolest Thing Ever,”
WASHINGTONIAN MAG. (Aug. 1, 2007), available at http://www.washingtonian.com/
articles/businesscareers/4903.html.
11. See, e.g., This American Life: Right to Remain Silent, Chicago Public Radio
(Sept. 10, 2010), http://www.thisamericanlife.org/radio-archives/episode/414/right-toremain-silent
(paraphrase of line from “Fight Club” as Facebook status update leads to
arrest for making terroristic threats).
12. See, e.g., Scott Cohn, S&P Officials: We’d Do a Deal ‘Structured by Cows,’
CNBC.COM (Oct. 22, 2008), http:// www.cnbc.com/id/27321998/S_P_Officials_We_d_
Do_a_Deal_Structured_by_Cows.

2012] OVERSHARING: FACEBOOK DISCOVERY 43
by attorneys, and less frequently by courts, is in presuming that
the procedures for obtaining discovery will work exactly the
same for electronic documents, such as emails and socialnetworking
posts, as they do for paper documents—that nothing
has changed. In particular, parties who presume they can
subpoena electronic documents from third-party Internet Service
Providers (ISPs) may discover that federal law bars ISPs from
complying with ordinary pretrial subpoenas. 13 The party itself
must be the target of such discovery. 14
But the more serious mistake is the opposite one—a
presumption by courts and attorneys that the rules governing
discovery of social-networking information in a civil dispute
must be radically different from those governing paper
documents. Courts are increasingly ordering parties to provide
not just relevant documents responsive to an opposing party’s
requests—an obligation that private parties in litigation
unquestionably have, and which individuals are discovering to
their chagrin—but also to provide opposing parties with
unfettered access to their accounts. 15 That is, courts are
ordering parties to provide access to all of their socialnetworking
posts on any subject, related or not to the claims and
defenses at issue in the lawsuit, apparently on the theory that
because the posts are on the Internet, the normal rules of
discovery do not apply. 16
As I argue below, ordering a party to provide another party
with access to an entire account is an incorrect reading of the
rules governing discovery. But it is intriguing to speculate as to
why some courts are making this mistake. In part, it may simply
13. See 18 U.S.C. § 2702 (2006). For more, see infra Part II.
14. See 18 U.S.C. § 2702 (prohibiting a service provider from divulging the contents
of a person’s electronic communication except in the allowable exceptions listed in §
2702(a)); see also In re Subpoena Duces Tecum to AOL, 550 F. Supp. 2d 606, 611 (E.D.
Va. 2008) (holding that a party could not use a civil-discovery subpoena to circumvent the
exceptions listed in the Privacy Act).
15. See, e.g., Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL
2265668, at *1 (M.D. Tenn. June 3, 2010). For more, see infra Part III.A.
16. See infra note 58 and accompanying text. For the most part, the courts ordering
such access have been state courts. See id. However, the rules governing discovery in
most states are fairly similar to those governing discovery under the Federal Rules of Civil
Procedure. See infra note 34 and accompanying text. Furthermore, there is no reason to
suspect that federal judges are somehow immune from whatever chain of reasoning is
leading state-court judges to order over-production.

44 ARKANSAS LAW REVIEW [Vol. 65:39
be an example of Internet law gone slightly awry. Certainly the
courts are correct to the extent they are sensing that one of the
costs of discovery, leading to a vast amount of inefficiency, is
removed when the documents in question are available online
with a simple username and password. But one pervasive
feature of Internet law is that transaction costs in the physical
world often mask other values that we as a society believe to be
important. For example, the cost of personally visiting a clerk’s
office and looking up property or court records concerning
individuals not only made large-scale use of such records
inefficient, but it also protected personal privacy to some extent.
Likewise, the cost of duplicating copyrighted materials did a fair
amount of the work of enforcing copyright law.
Social-media discovery orders entered by courts therefore
have the advantage of revealing a hidden and important function
of civil-discovery rules: the extent to which they protect privacy.
The Federal Rules of Civil Procedure and similar state rules, by
their very terms, balance efficiency against justice. The rules
governing discovery would perhaps be more efficient if they
allowed opposing counsel to go rummaging through a party’s
documents, looking for relevant material. But the rules by and
large require only production of documents, with limited
exceptions for physical objects, processes, or real property. 17
The reason is that it would be far too invasive to require, as a
condition of bringing a claim or defending against one, that
parties open all evidence of their most personal thoughts or
confidential business plans to an adverse party. 18 The gain in
efficiency from a different rule is outweighed by the net social
costs in both the privacy of litigants and the dissuasion of those
with meritorious claims or defenses from pursuing those claims
and defenses to their conclusions.
17. See FED. R. CIV. P. 34(a)(2).
18. There has been considerable grumbling about mandatory disclosure and how it is
contrary to the nature of the adversarial system. See generally 6 JAMES WM. MOORE ET
AL., MOORE’S FEDERAL PRACTICE § 26.28 (3d ed. 1997). But the interest there seems to
be one that is not much worth protecting. The inequality in the ability of parties to retain
competent legal representation is a defect of our process, not a feature.

2012] OVERSHARING: FACEBOOK DISCOVERY 45
II. FALSE NEGATIVES: SUBPOENAS TO THIRD PARTY
SOCIAL NETWORKING SITES
We are still at the dawn of the Information Age. For only a
few short years have individuals’ lives been quite so well
documented as they are now. Social-networking sites are only
the beginning: keypasses, swipe cards, smartphones, and cell
phones all track an individual’s location; search queries on
Google and other search engines are logged; communications by
email, text message, or voicemail are often permanently saved. 19
Much of this information is held by third parties and stored on
servers accessible from the web, making it a particularly
attractive target for discovery. 20
Not only are individuals in litigation struggling to come to
terms with this new information reality, so are attorneys and
judges. Requests for social-networking communications are
quickly evolving from novel to de rigueur. 21 But the rules
governing the online world can be starkly different than what
lawyers may be used to. In particular, subpoenas in civil cases
to Internet Service Providers offer an example of where the law
was dramatically altered to deal with technological change. In
1986, well before the web, broadband Internet access, and social
networks, Congress passed the Electronic Communications
Privacy Act (ECPA), sharply limiting the disclosures an ISP
could make. 22 The ECPA broadly prohibits an ISP from
disclosing the contents of communications except in certain
circumstances. 23 One of those is with the consent of the sender
19. See John G. Browning, Digging for the Digital Dirt: Discovery and Use of
Evidence from Social Media Sites, 14 SMU SCI. & TECH. L. REV. 465, 495 (2011).
20. See PETER MELL & TIMOTHY GRANCE, The NIST Definition of Cloud
Computing, NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY 2-3 (Sept. 2011),
available at http://csrc.nist.gov/publications/nistpubs/800-145/SP800-145.pdf.
21. For a brief history of the rules regarding the discovery of electronic documents,
see Richard L. Marcus, E-Discovery Beyond the Federal Rules, 37 U. BALT. L. REV. 321,
330-32 (2008) (describing the beginnings of e-discovery). E-discovery has become so
important that many law firms have created departments dedicated entirely to e-discovery.
See id. at 324 (describing how non compliance with e-discovery rules relating to
preservation can lead to malpractice).
22. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat.
1848 (1986) (codified as amended in scattered sections of 18 U.S.C.).
23. Specifically, Title II of the ECPA, known as the Stored Communications Act,
prohibits any person providing an “electronic communications service” (ECS) to the public
from “knowingly divulg[ing] to any person or entity the contents of a communication while
in electronic storage by that service.” 18 U.S.C. § 2702(a)(1) (2006). An “electronic

46 ARKANSAS LAW REVIEW [Vol. 65:39
or recipient. 24 Another is in response to any “administrative
subpoena authorized by a Federal or State statute or a Federal or
State grand jury or trial subpoena” from a government entity. 25
The statute does not mention pretrial subpoenas, however, and
courts have generally held that ISPs are barred from disclosing
the contents of communications held on their servers in response
to a civil subpoena. 26
communications service” is “any service which provides to users thereof the ability to send
or receive wire or electronic communications.” 18 U.S.C. § 2510(15). Facebook and other
social-networking services have been held to be ECS providers. See Crispin v. Christian
Audigier, Inc., 717 F. Supp. 2d 965, 982 (C.D. Cal. 2010). Section 2702(a)(2)(B) also
prohibits providers of “remote computing service” (RCS) to the public from disclosing
communications received from subscribers “solely for the purpose of providing storage or
computer processing services to such subscriber or customer, if the provider is not
authorized to access the contents of any such communications for purposes of providing
any services other than storage or computer processing.” Congress evidently had in mind
service providers that provided data storage capacity and processing power for companies
too small to afford their own local computer network. See Crispin, 717 F. Supp. 2d at 978
& n.26; Robison, supra note 2, at 1207. But that business model has only recently been
resurrected with the rise of cloud computing. There is considerable confusion about how to
treat entities that offer both ECS and RCS, which Congress in 1986 apparently did not
anticipate. See Crispin, 717 F. Supp. 2d at 986 n.42; Bruce E. Boyden, Privacy of
Electronic Communications, in PROSKAUER ON PRIVACY 6-1, 6-105 to -107 (Kristen J.
Mathews ed., 2011); Orin S. Kerr, A User’s Guide to the Stored Communications Act, and
a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1216 (2004).
24. 18 U.S.C. § 2702(b)(3) (2006).
25. 18 U.S.C. § 2703(b)(1)(B)(i); see also 18 U.S.C. § 2702(b)(2) (“A provider
described in subsection (a) may divulge the contents of a communication . . . as otherwise
authorized in section 2517, 2511(2)(a), or 2703 of this title.”). Sections 2517 and
2511(2)(a) concern court-authorized wiretaps in law-enforcement investigations. Section
2703 provides that “[a] governmental entity may require the disclosure by a provider of
electronic communication service of the contents of a[n] . . . electronic communication”
only pursuant to a criminal search warrant if it has been held 180 days or less, or by
“us[ing] an administrative subpoena authorized by a Federal or State statute or a Federal or
State grand jury or trial subpoena” if it is more than 180 days old. 18 U.S.C. §§ 2703(a),
(b)(1)(B)(i) (2006). These exceptions do not seem to even contemplate requests by private
parties in civil litigation, as evidenced by the search-warrant requirement for emails less
than six months old. See 18 U.S.C. § 2703(a). But even though a Rule 45 subpoena issues
from the court, see FED. R. CIV. P. 45(a)(2), and may thus be said to be a “require[ment]”
by a “governmental entity” to disclose the contents of communications, it is neither an
administrative subpoena, a grand-jury subpoena, nor a trial subpoena, and thus fails to fall
within any exception in § 2703.
26. See Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 975 (C.D. Cal.
2010); Barnes v. CUS Nashville, LLC, No. 3:09-0764, 2010 WL 2196591, at *1 (M.D.
Tenn. May 27, 2010). Not every court is inclined to agree, however. In Ledbetter v. Wal-
Mart Stores, Inc., the court denied a request for a protective order against subpoenas to
social networks without mentioning the Stored Communications Act (SCA). No. 06-cv-
01958-WYD-MJW, 2009 WL 1067018 (D. Colo. Apr. 21, 2009). And in McCready v.
eBay, Inc., the Seventh Circuit held that “[g]ood faith reliance on a [private party’s]

2012] OVERSHARING: FACEBOOK DISCOVERY 47
The rule governing subpoenas on nonparties for ordinary
documents is different. Such requests are governed by Rule 45
of the Federal Rules of Civil Procedure, or an equivalent state
rule, which provides that nonparties must respond to a subpoena
for documents unless the request imposes an “undue burden or
expense” on the nonparty. 27 But section 2702 of the ECPA does
not contain any sort of balancing test. ISPs are completely
prohibited from disclosing communications in response to a
pretrial subpoena.
It is unclear why Congress decided to alter the existing
rule. The most likely explanation is that it was simply an
oversight; Congress’s primary focus in adopting the ECPA was
to regulate government access to electronic communications, in
particular during criminal investigations. 28 The legislative
history for the ECPA does not even mention civil subpoenas, let
alone discuss why they were not included as a permitted
disclosure. 29 Furthermore, there is no obvious purpose served
by treating electronic documents differently than paper
documents in this regard. 30 Emails and other electronic
subpoena is a complete defense to actions brought under the . . . SCA.” 453 F.3d 882, 892
(7th Cir. 2006). But that would only be true if a private party could in fact subpoena
electronic communications under the SCA, which it cannot.
27. FED. R. CIV. P. 45(c)(1). Rule 45(c)(1) imposes an affirmative duty on the
requesting party to avoid undue burden or expense. Rule 45(c)(3)(A) requires the court to
quash the subpoena for certain burdens or expenses, and Rule 45(c)(3)(B) permits it to do
so for others.
28. See H.R. REP. NO. 99-647, at 16 (1986); S. REP. NO. 99-541, at 1 (1986),
reprinted in 1986 U.S.C.C.A.N. 3555, 3555.
29. See H.R. REP. NO. 99-647, at 68-69 (1986); S. REP. NO. 99-541, at 37-38 (1986),
reprinted in 1986 U.S.C.C.A.N. 3555, 3591.
30. One possibility is that Congress intended in § 2703 to indicate its disapproval, at
least in part, of the “third-party doctrine,” the doctrine that a person does not have any
Fourth Amendment right to prevent searches of documents or records held by a third party,
such as a bank or a telephone company. See Smith v. Maryland, 442 U.S. 735 (1979)
(telephone numbers dialed); United States v. Miller, 425 U.S. 435 (1976) (bank records).
At least one current Supreme Court Justice has indicated a willingness to revisit Smith and
Miller. See United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J.,
concurring); see also id. at 957-64 (Alito, J., dissenting) (determining whether Fourth
Amendment search occurs by looking to societal expectations of privacy). But even so, the
controversy over the third-party doctrine concerns only criminal searches and seizures;
there has been comparatively little controversy over the use of subpoenas to nonparties in
civil litigation. And any such controversies that have occurred have been resolved using
Rule 45’s balancing test. See Gonzales v. Google, Inc., 234 F.R.D. 674, 686 (N.D. Cal.
2006) (requests for user-submitted search queries “unreasonably cumulative or
duplicative”).

48 ARKANSAS LAW REVIEW [Vol. 65:39
communications, although sensitive, are not more likely to be
sensitive than financial records, or private papers held in
storage, or mail held in a private mailbox.
In at least this respect, the ECPA is therefore an example of
a precipitous reaction by the legislature to changed technology,
even when there was no real need to change the law at all. 31
Lawyers unfamiliar with the ECPA might be forgiven for not
anticipating that the law would change in this way. In any
event, the practical effect of the change in most cases will be
muted. Even if a nonparty ISP cannot be subpoenaed directly to
produce a person’s communications relevant to the dispute, the
person him- or herself can. That is, a party to a civil lawsuit can
simply propound a Rule 34 document request on his or her
opposing party to produce relevant electronic communications
from the opposing party’s ISP, or subpoena a nonparty to do so.
As long as opposing parties still have access to their accounts,
the documents are likely to be held within their “possession,
custody, or control.” Indeed, several courts have ordered parties
to produce their social-networking communications or other
messages, or at least consent to their production by the relevant
ISP. 32 Such an order does not fall afoul of the ECPA, because
as one court noted, an ordinary individual is not an ISP, and thus
is not subject to any of the disclosure prohibitions in section
2702. 33
III. FALSE POSITIVES: DISCOVERY OF SOCIAL
NETWORK POSTS
The unavailability of subpoenas for nonparty ISPs under
the ECPA is not a serious impediment to discovery, as discovery
may be had directly from the party itself. Under Rule 34 of the
Federal Rules of Civil Procedure and equivalent state rules, a
party can request another person or party “to produce and permit
31. Protecting the privacy of electronic and telephonic communications has been a
vexing problem for Congress and for courts since the early days of the twentieth century.
See generally Boyden, supra note 23, at 6-1 to 6-10.
32. See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346, 359 (E.D. Mich. 2008)
(ordering production of text messages); People v. Christian, No. 08F09791 (Cal. Super. Ct.
Feb. 4, 2011) (ordering juror to consent to production of Facebook posts made during trial
to the court).
33. Largent v. Reed, No. 2009-1823, 2011 WL 5632688, at *6-7 (Pa. Ct. C.P. Nov.
8, 2011).

2012] OVERSHARING: FACEBOOK DISCOVERY 49
the requesting party or its representative to inspect, copy, test, or
sample” designated documents, electronically stored
information, or tangible things “in the responding party’s
possession, custody, or control.” 34 This includes socialnetworking
messages, comments, and posts, which are
“documents or electronically stored information,” defined under
Rule 34 as including any writing “stored in any medium from
which information can be obtained either directly or, if
necessary, after translation by the responding party into a
reasonably usable form.” 35 Such materials must therefore be
produced if requested, as long as they fit within the Rules’ broad
definition of relevance and are neither protected by any
privilege 36 nor unduly burdensome in one of the ways specified
by the Rules. 37 And materials held by a nonparty ISP such as
Facebook will nevertheless be within a party’s “custody,
possession, or control” as long as the party has the right to
access and copy those materials. 38 Facebook itself offers users
34. FED. R. CIV. P. 34(a)(1). Many of the decisions discussed below were rendered
under state law, particularly New York and Pennsylvania, but state rules of civil procedure
are similar. See, e.g., N.Y. C.P.L.R. 3120(1)(i) (McKinney 2005) (party may request
another party or person “to produce and permit the party seeking discovery . . . to inspect,
copy, test or photograph any designated documents or any things which are in the
possession, custody or control of the party or person served”); PA. R.C.P. NO. 4009.1
(party may request another party or person “to produce and permit the requesting party . . .
to inspect and copy any designated documents . . . or to inspect, copy, test or sample any
tangible things . . . which are in the possession, custody or control of the party or person
upon whom the request or subpoena is served”).
35. FED. R. CIV. P. 34(a)(1)(A). The term “electronically stored information” was
added in 2006 merely “to confirm that discovery of electronically stored information stands
on equal footing with discovery of paper documents.” FED. R. CIV. P. 34(a) advisory
committee note to 2006 amendment.
36. FED. R. CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense—including the
existence, description, nature, custody, condition, and location of any documents or other
tangible things and the identity and location of persons who know of any discoverable
matter.”); FED. R. CIV. P. 26(b)(3) (protecting work product prepared in anticipation of
litigation).
37. See FED. R. CIV. P. 26(b)(2).
38. See Buckley v. Vidal, 50 F.R.D. 271, 274 (S.D.N.Y. 1970) (“Production may be
ordered when a party has the legal right to obtain papers, even though he has no copy, and
regardless of whether a paper is beyond the jurisdiction of the court.”); MOORE ET AL.,
supra note 18, § 34.14[b] (control includes “the legal right to obtain the documents
requested upon demand” (quoting Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.
1984))).

50 ARKANSAS LAW REVIEW [Vol. 65:39
the ability to download all updates ever made to their “wall,” as
long as they are current subscribers. 39
Given the effect of the ECPA on discovery from nonparty
ISPs, one might suspect an equally profound transformation has
taken place with respect to requests from parties themselves.
That is, given how widely social-networking posts are typically
shared, and how easy they are to access and copy, one might
conclude that perhaps the rules are, or at least should be,
different for social-networking posts than for other sorts of
documents. In fact, several courts have presumed exactly that,
ordering parties not merely to produce relevant documents
responsive to a request, but to affirmatively grant unlimited
access to their accounts to an opposing party. In some cases,
parties have been ordered to turn over their passwords and login
information, so that opposing counsel can log in as the account
holder and see everything that he or she sees, including not only
the account holder’s posts, but the posts of all of the account
holder’s friends. 40 And although only a dozen such decisions
have come to light, primarily from state trial courts, it is likely
that these decisions are just the tip of an unseen iceberg of
unreported cases, as state trial-court opinions are typically not
captured in online databases and are often simply made on the
record. Many of the decisions that have come to light so far
have come from two states, New York and Pennsylvania, which
may simply be an artifact of better journalistic coverage of legal
developments in those jurisdictions. 41
Whatever may be said about the prevalence of decisions
granting litigants access to their opponents’ social-networking
39. See Kelly Ann Bub, Comment, Privacy’s Role in the Discovery of Social
Networking Site Information, 64 SMU L. REV. 1433, 1460 (2011); Download Your
Information, FACEBOOK (visited Feb. 6, 2012), http:// www.facebook.com/help/?page=
116481065103985. According to Facebook, the following is included in a download:
profile and timeline information, wall and timeline posts by the user and his or her friends,
uploaded photos and videos, friend lists, notes, events that users have RSVP’d, sent and
received messages, and comments that a user or his or her friends have posted to the user’s
wall, photos, and other profile content. Id. Comments that the user has made on friends’
posts, as well as friends’ posts merely visible to the user, are apparently not included.
40. See, e.g., Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sup. Ct. 2010);
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct.
C.P. Sept. 9, 2010).
41. Both New York City and Philadelphia have daily legal newspapers, the New
York Law Journal and the Legal Intelligencer, respectively. I have heard anecdotal reports
of similar orders being issued in Wisconsin.

2012] OVERSHARING: FACEBOOK DISCOVERY 51
accounts, the propriety of these rulings is clear: they are
mistaken. The traditional rules of discovery contain no
exception that would permit a party to effectively rummage
through its opponent’s files, looking for relevant and responsive
materials. Furthermore, an expansive reading of the rules is not
justified as a matter of policy. Far from a vestigial remnant of
paper-based discovery practice, the procedures requiring
production by a party of its own documents serve an important
function by design, one that has hitherto not been the focus of
much attention.
A. The Cases
Courts in Ontario were among the first to confront the
issue. In three separate decisions starting in 2007, all of them
involving automobile accidents, Ontario trial-court judges ruled
on the question of whether defendants could obtain information
from the plaintiffs’ social-networking accounts contradicting
their claims of injury. In the first of these cases, Murphy v.
Perger, the defendant moved for production of photographs
contained on a private Facebook page that allegedly showed the
plaintiff, who was claiming severe physical injuries and loss of
enjoyment of life, “engaged in various social activities.” 42 The
court balanced the need for the information against the burden to
the plaintiff, but found the photographs highly relevant and the
privacy interest minimal: “The plaintiff could not have a serious
expectation of privacy given that 366 people have been granted
access to the private site.” 43
The defendant in Murphy requested simply production of
relevant photographs, but in later cases defendants went beyond
that. In Leduc v. Roman, the defendant requested “production of
all information on the Facebook profile.” 44 The Leduc court
followed Murphy in holding that there were likely relevant
documents in the private section of the plaintiff’s account, the
production of which would not be barred by any privacy
concerns: “Facebook is not used as a means by which account
holders carry on monologues with themselves.” 45 But the court
42. 2007 CarswellOnt 9439, para. 4 (Can. Ont. Super. Ct. J.) (WL).
43. Id. para. 20.
44. 308 D.L.R. 4th 353, para. 6 (Can. Ont. Super. Ct. J. 2009).
45. Id. para. 31.

52 ARKANSAS LAW REVIEW [Vol. 65:39
refused to order complete production of the account. “[M]ere
proof of the existence of a Facebook profile does not entitle a
party to gain access to all material placed on that site. Some
material may relate to matters in issue; some may not.” 46
In Schuster v. Royal & Sun Alliance Insurance Co. of
Canada, the defendant went even further, requesting “access” to
the private area of the plaintiff’s Facebook account. 47 The court
expressed uncertainty as to whether the defendant was
requesting access to the Facebook account itself or merely
production of material from the account, but if the former, the
court would have denied the request. 48 The Schuster court held
that granting access to the plaintiff’s account would be “more
invasive” than an order requiring the plaintiff to preserve
materials for later production, not only because it would “require
the Plaintiff to provide the Defendant with her personal
username and password,” as well as her private email
correspondence on Facebook, but also because the court held
that ordering access was beyond the scope of the rules for
discovery, which only require production of materials. 49
Several United States courts have arrived at the same
conclusion as the Ontario courts: while social-networking posts
do not receive any special protection from production under the
rules of civil procedure, neither do they get less. In particular,
ordering production of an entire account is in most cases
inappropriate, 50 as is requiring opposing counsel to have
46. Id. para. 33; see also Kent v. Laverdiere, 2009 CanLII 16741 (Can. Ont. Super.
Ct. J.) (WL) (denying motion for production of Facebook and MySpace materials close to
trial due to need to review for relevance).
47. 2009 CanLII 58971, para. 1 (Can. Ont. Super. Ct. J.) (WL).
48. See id. paras. 13, 19.
49. Id. paras. 17, 18.
50. See Debord v. Mercy Health Sys. of Kan., Inc., No. 10-4055-WEB, 2011 U.S.
Dist. LEXIS 87019, at *6-7 (D. Kan. Aug. 8, 2011) (denying motion to compel on grounds
of relevance, embarrassment, and failure to demonstrate prior production was lacking);
E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 437 (S.D. Ind. 2010) (request
for all information from account overbroad); Patterson v. Turner Const. Co., 931 N.Y.S.2d
311, 311-12 (App. Div. 2011) (reversing order compelling plaintiff to authorize disclosure
of Facebook account to defendant and remanding for determination of which materials are
relevant); McCann v. Harleysville Ins. Co. of N.Y., 910 N.Y.S.2d 614, 615 (App. Div.
2010) (affirming denials of motions to compel authorizations to disclose Facebook
accounts without demonstrations of relevance as “fishing expedition[s]”).

2012] OVERSHARING: FACEBOOK DISCOVERY 53
access. 51 This is true even in cases where the plaintiff
complains of emotional distress, thus arguably making all of her
mental states relevant. That does not mean that all evidence of
mental states must be produced. As one court noted, in denying
a request to order the complainant in an employmentdiscrimination
case to disclose her complete Facebook and
MySpace accounts, “[t]o be sure, anything that a person says or
does might in some theoretical sense be reflective of her
emotional state. But that is hardly justification for requiring the
production of every thought she may have reduced to writing or,
indeed, the deposition of everyone she may have talked to.” 52
Other courts have ignored such warnings and have ordered
complete production of the information in a party’s socialnetworking
account. 53 In some cases courts have ordered
production after performing an in camera review of the party’s
entire account for relevance. 54 While such a review is perhaps
less intrusive than ordering complete production ab initio to
opposing counsel, 55 it should not be lightly invoked. Not only is
51. See Chauvin v. State Farm Mut. Auto. Ins. Co., No. 10-11735, 2011 U.S. Dist.
LEXIS 121600, at *3 (S.D. Mich. Oct. 20, 2011) (access denied as burdensome and
irrelevant); Abrams v. Pecile, 922 N.Y.S.2d 16, 17 (App. Div. 2011) (access denied
because no support for request); In re Application of Progressive Ins. Co. v. Herschberg,
No. 000014/10, 2011 WL 1991960 (N.Y. Sup. Ct. Mar. 30, 2011) (“unlimited access”
denied as overbroad); Caraballo v. City of New York, No. 103477/08, 2011 WL 972547
(N.Y. Sup. Ct. Mar. 4, 2011) (access denied where relevancy not demonstrated); Arcq v.
Fields, No. 2008-2430, at 4 (Pa. Ct. C.P. Dec. 8, 2011), available at http://www.
volokh.com/wp/wp-content/uploads/2011/12/Arcq
.pdf (access denied where relevancy not demonstrated); Piccolo v. Paterson, No. 2009-
04979 (Pa. Ct. C.P. May 5, 2011) (access denied). Although heartening, the holdings in
most of these cases has been limited: that access to a social-networking account has not
been justified in that particular case by a preliminary showing that relevant information is
likely to exist in the account.
52. Simply Storage Mgmt., LLC, 270 F.R.D. at 435 (quoting Rozell v. Ross-Holst,
No. 05 Civ. 2936(JGK)JCF, 2006 WL 163143, at *3 (S.D.N.Y. Jan. 20, 2006)).
53. See, e.g., Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (Sup. Ct. 2010).
54. See Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL 2265668, at
*1 (M.D. Tenn. June 3, 2010); Bass ex rel. Bass v. Miss Porter’s Sch., No. 3:08CV1807
(JBA), 2009 WL 3724968, at *1 (D. Conn. Oct. 27, 2009). In Offenback v. Bowman Inc.,
the court performed an in camera review for relevance at the request of the parties but
expressed confusion as to why such a review was not something the plaintiff could have
done himself. No. 1:10-CV-1789, 2011 WL 2491371, at *2 & n.3 (M.D. Pa. June 22,
2011).
55. In Bass, a case arising from a conflict between the plaintiff and other students at
her private school, the court ordered production of all materials that had been retrieved
from the plaintiff’s Facebook account after performing an in camera comparison of
printouts of what had been produced versus what had been withheld. 2009 WL 3724968,

54 ARKANSAS LAW REVIEW [Vol. 65:39
a review for relevance a burden on the court, 56 but it exposes the
personal communications of a party to the judge, perhaps
unnecessarily. Indeed, in order to resolve one discovery dispute
over photographs and comments posted on Facebook, a judge in
one case requested that the plaintiff and a nonparty witness
accept “friend requests” from an account he had set up so that he
could review the photographs. 57
By far the most troubling cases, however, have been when
courts have ordered parties to grant access to their accounts to
parties requesting discovery of those accounts—that is, to
provide adverse parties with the ability to roam through the
accounts at will, without any constraint as to what information is
viewed or copied. 58 Courts have listed three reasons for
granting such requests for access. First, courts have concluded
that there is likely to be relevant information in the account. 59
Most of the cases involving disputes over discovery of socialnetworking
sites have been personal-injury lawsuits. 60
Typically it is the defendants that are seeking materials,
especially photographs, from the plaintiffs’ accounts, in order to
disprove allegations of serious, debilitating injury. Socialnetworking
accounts are thus an appropriate target for discovery
at *1. Finding “no meaningful distinction” between the two, the court allowed the
defendant to obtain the complete set of printouts. Id. at *1-2.
56. See Collens v. City of New York, No. 03 Civ. 4477 JGK HBP, 2004 WL
1395228, at *2 (S.D.N.Y. June 22, 2004) (“It is well-settled that in camera review of
documents by the Court is the exception and not the rule because of the enormous strain it
places on the resources of federal trial courts. Such review is ordinarily utilized only when
necessary to resolve disputes concerning privilege; it is rarely used to determine
relevance.”) (internal citations omitted).
57. Barnes, 2010 WL 2265668, at *1.
58. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 657 (Sup. Ct. 2010); Largent v.
Reed, No. 2009-1823, 2011 WL 5632688 (Pa. Ct. C.P. Nov. 8, 2011); Zimmerman v. Weis
Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Ct. C.P. May 19, 2011); McMillen
v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. C.P. Sept.
9, 2010).
59. See cases cited supra Part III.A.
60. There are a wide variety of other contexts in which such information might be
relevant, however, such as divorce actions. See Kashmir Hill, Judge Orders Divorcing
Couple to Swap Facebook and Dating Site Passwords, FORBES.COM (Nov. 7, 2011, 10:42
AM), http:// www.forbes.com/sites/kashmirhill/2011/11/07/judge-orders-divorcing-coupleto-swap-facebook-and-dating-site-passwords/
(discussing the Connecticut divorce case of
Stephen and Courtney Gallion). Information from social-network sites has also been
relevant in employment-discrimination cases. See E.E.O.C. v. Simply Storage Mgmt., 270
F.R.D. 430, 432 (S.D. Ind. 2010); Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958-
WYD-MJW, 2009 WL 1067018, at *2 (D. Colo. Apr. 21, 2009).

2012] OVERSHARING: FACEBOOK DISCOVERY 55
in such cases; it is likely that the average social-networking
account will have relevant information concerning the account
holder’s quality of life. 61 And defendants undeniably have the
right to seek such relevant and important materials in defense of
the claims being made against them. 62 To the extent plaintiffs
have argued that social-networking sites are immune from
discovery in civil cases, that argument is ill-founded.
Second, courts have generally rejected the argument that
privacy concerns should bar production of relevant materials.
Courts considering whether to grant access to social-networking
site materials have alternately described the argument as either
that there should be a new “social-networking privilege” or that
the plaintiff had a “reasonable expectation of privacy” in the
materials that makes production improper. 63 Unsurprisingly,
courts have declined to recognize a new evidentiary privilege for
social-networking posts, 64 which are hardly akin to the
sensitivity or privacy of attorney-client, doctor-patient, or priestpenitent
communications. And, courts have likewise rejected
the notion of any “reasonable expectation of privacy” in socialnetworking
materials, 65 although there the analysis might have
moved too quickly. It is true, as courts have noted, that the
entire purpose of social-networking sites is to share information
with others. 66 And it is also true that Facebook, MySpace, and
61. See Simply Storage, 270 F.R.D. at 435; Largent, 2011 WL 5632688; Leduc v.
Roman, 308 D.L.R. 4th 353, para. 23 (Can. Ont. Super. Ct. J. 2009) (“That a person’s
Facebook profile may contain documents relevant to the issues in an action is beyond
controversy.”).
62. See FED. R. CIV. P. 26(b)(1) (“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . .”); Schlagenhauf
v. Holder, 379 U.S. 104, 114-15 (1964) (“[T]he deposition-discovery rules are to be
accorded a broad and liberal treatment to effectuate their purpose that civil trials in the
federal courts no longer need be carried on in the dark.”) (internal citations omitted)
(internal quotation marks omitted).
63. Largent, 2011 WL 5632688.
64. See id.; McMillen, 2010 WL 4403285.
65. See Largent, 2011 WL 5632688.
66. See Romano v. Steelcase Inc., 907 N.Y.S.2d 650, 657 (Sup. Ct. 2010) (stating
that “the very nature and purpose of these social networking sites” is to share personal
information with others, notwithstanding privacy settings or else the sites “would cease to
exist”); Largent, 2011 WL 5632688 (“Only the uninitiated or foolish could believe that
Facebook is an online lockbox of secrets.”); Leduc v. Roman, 308 D.L.R. 4th para. 31
(Can. Ont. Super. Ct. J. 2009) (“Facebook is not used as a means by which account holders
carry on monologues with themselves.”); Murphy v. Perger, 2007 CarswellOnt 9439, para.

56 ARKANSAS LAW REVIEW [Vol. 65:39
other social-networking sites make no promise to keep one’s
posts, comments, and other materials confidential. 67
But that does not mean there are not any privacy interests at
stake at all. It is hardly the case that sharing information with a
limited number of people removes all privacy interests from that
information. 68 Rather, it can only be said that the privacy
interests in social-networking site discussions are not so extreme
as to bar any production of material, no matter how relevant,
from a social-networking account. The burden on the plaintiff,
however, including the burden on the plaintiff’s privacy and
social relationships, must still be balanced against the need for
the discovery even if the requested information is relevant.
Under Rule 26(b)(2), “the court must limit the frequency or
extent of discovery otherwise allowed by these rules . . . if it
determines that . . . the burden or expense of the proposed
discovery outweighs its likely benefit . . . .” 69 Protecting a party
from “annoyance, embarrassment, [or] oppression” is expressly
contemplated under the Rules. 70 If the importance of the
sought-after information is slim, and the intrusiveness is great,
courts have the discretion to limit discovery of such materials or
even order that it not be had. 71
Finally, courts ordering access to an account have required
the requesting party to first demonstrate a likelihood that
20 (Can. Ont. Super. Ct. J.) (WL) (“The plaintiff could not have a serious expectation of
privacy given that 366 people have been granted access to the private site.”).
67. See Romano, 907 N.Y.S. 2d at 656-57; McMillen, 2010 WL 4403285.
68. See United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J.,
concurring) (“I would not assume that all information voluntarily disclosed to some
member of the public for a limited purpose is, for that reason alone, disentitled to Fourth
Amendment protection.”); Multimedia WMAZ, Inc. v. Kubach, 443 S.E.2d 491, 494 (Ga.
Ct. App. 1994) (disclosure of HIV-positive status to small group of family and friends did
not make fact public); DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND
PRIVACY IN THE INFORMATION AGE 43-44 (2004) (“[T]he understanding of privacy as
secrecy fails to recognize that individuals want to keep things private from some people but
not others.”); Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L.
REV. 919, 974-75 (2005) (defining reasonable expectation of privacy in terms of risk that a
certain piece of information will flow outside a given social network).
69. FED. R. CIV. P. 26(b)(2)(C). The court is to consider five factors in making such
a determination: “the needs of the case, the amount in controversy, the parties’ resources,
the importance of the issues at stake in the action, and the importance of the discovery in
resolving the issues.” FED. R. CIV. P. 26(b)(2)(C)(iii).
70. FED. R. CIV. P. 26(c)(1).
71. See, e.g., Gonzales v. Google, Inc., 234 F.R.D. 674, 687-88 (N.D. Cal. 2006)
(considering burden on users’ privacy in granting requested discovery).

2012] OVERSHARING: FACEBOOK DISCOVERY 57
relevant materials exist in the account. 72 This requirement is
both unnecessary and insufficient, however. It is unnecessary
because, if relevant nonprivileged materials exist in the account,
a party need do nothing more to obtain those materials than
submit a Rule 34 document request to the account holder. 73
Granted, if the responding party insists that all relevant materials
have been produced, the requesting party must have some basis
for concluding that representation is incorrect in order to prevail
on a motion to compel. But several of the decisions considered
appear to have required such a demonstration as a threshold to
obtain social-networking-site materials at all, not merely to
contest a claim that all relevant materials have been produced.
For example, in Arcq v. Fields, the defendant first requested
materials from the plaintiff’s social-networking sites, and then
when that was not forthcoming, moved for access to the
plaintiff’s accounts. 74 A Pennsylvania Court of Common Pleas
judge denied the motion on the grounds that the defendant had
failed to allege “any basis for believing that Plaintiff’s profiles
contain any information relevant to the pending matter.” 75 The
plaintiff, however, had not denied that there were relevant
documents in the account; he had instead objected to the request,
claiming that it was “not reasonably calculated to lead to
discoverable evidence” and that he had “a reasonable
expectation of privacy in this information.” 76 In effect, the court
imposed a heightened showing for discovery requests from
social-networking sites.
The decision in another Pennsylvania case, Zimmerman v.
Weis Markets, Inc., 77 sheds some light on why courts may be
imposing this additional threshold. In Zimmerman, as in Arcq,
the plaintiff resisted the defendant’s attempt to gain access to the
account not on the basis of relevance, but on the grounds that
“his privacy interests outweigh the need to obtain the discovery
72. See Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Pa. Ct. C.P. Nov. 8,
2011).
73. See FED. R. CIV. P. 34(a)(1).
74. No. 2008-2430 (Pa. Ct. C.P. Dec. 8, 2011), available at http://volokh.com/
wp/wp-content/uploads/2011/12/Arcq.pdf.
75. Id. at 3.
76. Id. at 1.
77. No. CV-09-1535, 2011 WL 2065410 (Pa. Ct. C.P. May 19, 2011).

58 ARKANSAS LAW REVIEW [Vol. 65:39
material.” 78 The Zimmerman court granted the defendant’s
request, but expressed concern that its decision not be read as
giving opposing counsel in every case “carte blanche entitlement
to Facebook and MySpace passwords, user names and log in
names as part of a discovery request . . . .” 79 The court therefore
tried to limit its holding with a requirement of a “threshold
showing that the publicly accessible portions of any social
networking site contain information that would suggest that
further relevant postings are likely to be found by access to the
non-public portions.” 80 This reasoning suggests that it is quite
possible that some of the courts that have refused to grant access
to social-networking sites could be persuaded to do so if the
defendant is able to articulate a specific basis for believing that
relevant materials existed in the account. 81
That would be a mistake, however. Not only is a showing
of potentially relevant information unnecessary in order to
obtain such information in discovery, but it is also insufficient in
justifying the remedy that some courts have been ordering:
complete access by an opposing party to the subscriber’s
account. A party has the right to receive in discovery only
relevant, nonprivileged materials that it would not be unduly
burdensome to produce. 82 The party’s ability to make a
preliminary showing that such materials are likely to exist in a
particular location cannot expand the scope of discovery to
include irrelevant or unduly burdensome materials. Nor does it
permit parties to gain unfettered access to an opposing party’s
files or communications.
B. The Law
The orders granting access to a party’s social-networkingsite
accounts have two significant problems. First, they are
entirely inconsistent with the rules of civil procedure. Second,
the orders unquestionably invade users’ privacy without
sufficient cause. Indeed, there is some reason for thinking that
78. Id.
79. Id.
80. Id.
81. See supra notes 50-51.
82. By “unduly burdensome,” I mean to refer to all of the restrictions set forth in
Rule 26(b)(2) and (c)(1) of the Federal Rules of Civil Procedure.

2012] OVERSHARING: FACEBOOK DISCOVERY 59
this is one of the very dangers that the structure of the procedure
for discovery is designed to prevent.
With respect to the first point, ordering a party to allow
opposing counsel to have access to a social-networking account
is beyond the permissible methods of discovery, even if some
information in the account is within the scope of discovery. The
ordinary procedure for obtaining material from another party or
a nonparty is to make a request under Rule 34 that the party or
nonparty produce documents or things responsive to the request.
A document request is not a search warrant; it does not authorize
the requesting party to rifle through the responding party’s files
on its own, searching for documents. Rule 34 is quite clear
about the responding party’s obligations in responding to such a
request: the responding party must “produce and permit the
requesting party . . . to inspect, copy, test, or sample” the
requested items. 83 That is, the responding party must itself first
produce the items; only then does the obligation arise to permit
inspection, copying, testing, or sampling. There is no obligation
to allow opposing counsel to search on its own for responsive
documents and things to inspect, copy, test, or sample. 84
Other aspects of Rule 34 confirm that the rule requires only
that the responding party produce documents and tangible things
for review. For example, the request “must describe with
reasonable particularity each item or category of items to be
inspected.” 85 The reason for that is so that the responding party
can determine what documents or things are being requested so
that the responding party itself may produce them. Similarly,
Rule 26(b)(5) outlines procedures for making assertions of
privilege; it provides that “[w]hen a party withholds information
otherwise discoverable by claiming that the information is
privileged or subject to protection as trial-preparation material,
the party must . . . describe the nature of the documents . . . in a
manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim.” 86 Rule
83. FED. R. CIV. P. 34(a)(1). State rules are similar. See supra note 34.
84. Of course, one way of producing documents is simply to direct opposing counsel
to the location of the documents wherever they are kept by the responding party. The key
point here is only that this method of production is the responding party’s choice; it is not
mandated under the rule.
85. FED R. CIV. P. 34(b)(1)(A).
86. FED. R. CIV. P. 26(b)(5)(A)(ii).

60 ARKANSAS LAW REVIEW [Vol. 65:39
26(b)(5) therefore obviously contemplates that the assertion of
privilege will necessarily occur after some sort of review by the
responding party, but before acquisition of the documents by the
requesting party. If the requesting party could be allowed to
find documents and things on its own, there would be no
opportunity for a privilege review, and thus no opportunity to
“withhold” documents, let alone a need to describe the
documents adequately in that case to allow litigation of the
privilege claim.
There is thus no ordinary procedure under the Rules by
which opposing counsel gets to rummage through the party’s
papers looking for documents responsive to his or her
requests. 87 The Rules presume production of documents by the
responding party pursuant to a specifically delineated request.
Moore’s Federal Practice confirms this understanding in
describing the state of the law interpreting Rule 34:
There are three basic appropriate responses to a
request for production: (1) an objection to the scope, time,
method, and manner of the requested production; (2) an
answer agreeing to the requested scope, time, place, and
manner of production; or (3) a response offering a good
faith, reasonable alternative production that is definite in
scope, time, place or manner. . . .
In lieu of actual production of documents, a party may
respond to a request for production by allowing the
requesting party to inspect and copy the documents at a
place designated by the responding party. 88
Furthermore, the rules for electronically stored information are
no different; again, they presume production by the responding
party, not a search by the requesting party. 89
87. See, e.g., Klugel v. Clough, 252 F.R.D. 53, 54-55 (D.D.C. 2008) (holding that
Rule 34 cannot be used to compel party to sign release allowing others to obtain medical
records from third party).
88. MOORE ET AL., supra note 18, § 34.13[2][a]. It is clear that the ability to
“inspect” referenced in the rule contemplates inspection of a copy of documents extracted
from whatever filing system in which they are kept and produced separately. For example,
permitting inspection of documents at one’s counsel’s office satisfies the requirement to
permit “inspection” under Rule 34(a)(1). See Simms v. Ctr. for Corr. Health & Policy
Studies, 272 F.R.D. 36, 39-40 (D.D.C. 2011).
89. See, e.g., FED. R. CIV. P. 26(b)(2)(B) (“A party need not provide discovery of
electronically stored information from sources that the party identifies as not reasonably
accessible because of undue burden or cost.”) (emphases added); FED. R. CIV. P.

2012] OVERSHARING: FACEBOOK DISCOVERY 61
There is one procedure under Rule 34 that does allow a
party to enter upon another person’s land in order to conduct
discovery—a request to permit inspection of premises under
Rule 34(a)(2). Rule 34(a)(2) provides that a party may request
another party or nonparty “to permit entry onto designated land
or other property possessed or controlled by the responding
party, so that the requesting party may inspect, measure, survey,
photograph, test, or sample the property or any designated object
or operation on it.” 90 But Rule 34(a)(2) does not allow entry on
another’s property in order to conduct a search for documents. 91
The evident purpose is to allow discovery of objects, areas, or
activities that it is not feasible to move or produce in any other
way. 92 Courts have regularly limited the scope of inspections in
order to restrict it to this narrow purpose. 93
The leading case on this issue is Belcher v. Bassett
Furniture Industries, Inc. 94 In Belcher, an employmentdiscrimination
class action, the trial court granted the plaintiffs
permission to inspect five factories over a five-day period by an
expert with undisclosed expertise and “an entourage consisting
of an unspecified number of plaintiffs’ attorneys, a paralegal,
and two plaintiffs,” accompanied by a guide and an attorney of
the defendant’s choosing. 95 During the inspection, the expert
would have “the right to roam through the plants, to stop when
34(b)(2)(E) (setting forth procedures that “apply to producing documents or electronically
stored information”) (emphasis added).
90. FED. R. CIV. P. 34(a)(2). Again, state laws provide for similar procedures. See,
e.g., N.Y. C.P.L.R. 3120(1)(ii) (McKinney 2005) (party may request “any other person . . .
to permit entry upon designated land or other property in the possession, custody or control
of the party or person served for the purpose of inspecting, measuring, surveying,
sampling, testing, photographing or recording by motion pictures or otherwise the property
or any specifically designated object or operation thereon.”); PA. R.C.P. NO. 4009.31
(“Any party may serve a request upon a party . . . to permit entry upon designated property
in the possession or control of the party . . . upon whom the request is served for the
purpose of inspecting and measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation thereon . . . .”).
91. See supra note 90 and accompanying text.
92. See, e.g., Welzel v. Bernstein, 233 F.R.D. 185, 187 (D.D.C. 2005) (allowing
office suite to be photographed); Micro Chem., Inc. v. Lextron, Inc., 193 F.R.D. 667, 669
(D. Colo. 2000) (allowing access to machine for testing); Minn. Mining & Mfg. Co. v.
Nippon Carbide Indus. Co., 171 F.R.D. 246, 248-49 (D. Minn. 1997) (allowing observation
of manufacturing process).
93. See Micro Chem., Inc., 193 F.R.D. at 669 (“The right . . . is not unlimited.”).
94. 588 F.2d 904 (4th Cir. 1978).
95. Id. at 905-06.

62 ARKANSAS LAW REVIEW [Vol. 65:39
he chooses, and to make such inquiries as he deems appropriate
of any supervisors or employees in the plant.” 96 The subject of
the proposed inquiries was not disclosed. 97
The Fourth Circuit reversed. 98 While a response to
ordinary document requests may be compelled based on a
simple showing of relevance, the court held, “entry upon a
party’s premises may entail greater burdens and risks than mere
production of documents,” and therefore “a greater inquiry into
the necessity for inspection would seem warranted.” 99 The
Fourth Circuit agreed with the defendants that, given the lack of
a stated purpose for the inspection, it was likely the plaintiffs
wished to have their expert conduct “roving deposition[s]” of
the defendant’s employees, “taken without notice . . . of persons
who were not sworn and whose testimony was not recorded”
and was not subject to cross-examination, in order to include
those statements in his report. 100 But the court held that this
would be improper; the plaintiffs could not use an inspection of
premises to circumvent the requirements and protections of Rule
30 governing depositions. 101
Other courts have followed suit. Courts have expressed
particular concern where there is a possibility that an inspection
will reveal documents or other information beyond the particular
reason for the inspection. For example, in Schwab v. Wyndham
International, Inc., the court refused to order an inspection due
in part to concerns that “many of the departments plaintiff
want[ed] to inspect and photograph maintain[ed] confidential
and proprietary information, such as customer account
information, employee records, tax information, financial
reports, payroll records, sales and marketing plans, revenue
goals, and investor profiles.” 102 The defendant was not required
to make an argument that these documents were privileged, only
96. Id. at 906.
97. Id.
98. Id. at 911.
99. Id. at 908. The court’s holding in this regard can be justified, as in fact the court
suggested, as required by a careful balancing of the factors listed in Rules 26(b)(2) and
26(c), since an inspection is likely to impose more significant burdens on the responding
party than a typical document request.
100. Id. at 907, 910.
101. Id. at 909-10; see also FED. R. CIV. P. 30.
102. 225 F.R.D. 538, 539 (D. Colo. 2000).

2012] OVERSHARING: FACEBOOK DISCOVERY 63
that they should not be produced in this manner. 103 In Micro
Chemical, Inc. v. Lextron, Inc., the court granted a request in a
patent-infringement case for the requesting party to inspect a
machine belonging to the defendant—its competitor—but only
because the court was confident that the responding party could
take reasonable precautions to protect its secrets. 104 In Keith H.
v. Long Beach Unified School District, the court restricted the
scope of an inspection of two school facilities where there was a
risk that the plaintiff’s videotape might capture students’
personal effects, their works on display, or the their names. 105
The court expressed particular concern that unconstrained
videotaping during school hours might violate the students’
privacy. 106
Courts have also limited inspections in order to protect
other rights of the responding party. In Baugus v. CSX
Transportation, Inc., the court excluded a videotape that was
taken on the responding party’s land without prior notice and
implicitly held that the responding party had a right to have
counsel present during any inspection. 107 Obviously, if a
requesting party is given the ability to access a socialnetworking
account from any computer, the responding party’s
counsel will not likely be “present” during such access. In
Whittle v. Weber 108 and Gillett v. Conner, 109 two courts
permitted limited inspections of property by parties litigating
nuisance actions against their neighbors. 110 In Whittle, the
Alaska Supreme Court, after weighing the neighbor’s privacy
interests, 111 upheld an order to allow a limited inspection of the
neighbor’s property to test for the presence of hazardous or
noxious substances, specifically excluding “any residence” from
103. See id. (making no mention of privilege, yet still denying motion to compel
entry).
104. 193 F.R.D. 667, 668 (D. Colo. 2000).
105. 228 F.R.D. 652, 658-59 (C.D. Cal. 2005).
106. See id. at 659 (declining to permit inspection during school day, “when it would
unnecessarily interrupt the school’s activities and intrude upon the students’ privacy”).
107. 223 F.R.D. 469, 470 (N.D. Ohio 2004).
108. 243 P.3d 208 (Alaska 2010).
109. 133 P.3d 960 (Wash. Ct. App. 2006).
110. 243 P.3d at 209.
111. Id. at 213 (balancing the “burdens and dangers created by the inspection”
against whether a “compelling interest” in the inspection has been shown).

64 ARKANSAS LAW REVIEW [Vol. 65:39
the inspection. 112 In Gillett, a Washington appellate court
vacated an order permitting inspection where the inspection was
not so limited: the order there permitted the plaintiffs to inspect
and photograph the interior and exterior of their neighbor’s
residence, all outbuildings, and the land. 113 The court found that
even if such an inspection might uncover relevant evidence, the
burdens and risks posed to the neighbor’s privacy interests were
substantial. 114 The court remanded the case for a balancing of
the factors under Washington’s version of Federal Rule
26(b)(2)(C). 115
There is at least one case where, contrary to Belcher, the
court did permit some activity beyond merely inspecting and
testing property or objects. In New York State Ass’n for
Retarded Children Inc. v. Carey, the Second Circuit permitted
plaintiffs’ counsel, consultants, and experts to, among other
things, “interview any class member, staff member or employee
desired outside the presence of defendants, their counsel and
representatives.” 116 Carey is a special case, however, as the
court took pains to point out. 117 Carey’s inspection was not
pretrial discovery, but rather part of an effort to enforce a
consent decree in the wake of “quite specific” claims of
noncompliance and in order to “fill a gap left by the demise of
the Review Panel provided for in the Consent Judgment.” 118
“Mindful of the unique difficulties presented in post-judgment
compliance efforts of the sort here in question,” the Carey court
concluded, “we do not consider the district court’s discovery
order . . . to have been an abuse of discretion.” 119
Not only is a search of an opposing party’s files
impermissible as a discovery request, it is not even available as a
sanction under Rule 37 after a party has failed to adequately
respond to a request. 120 A party that unjustifiably refuses to
112. Id.
113. 133 P.3d at 964.
114. Id.
115. Id. (citing WASH. CIV. R. 26(b)(1)); see also FED. R. CIV. P. 26(b)(2)(C)(iii).
116. 706 F.2d 956, 960 (2d Cir. 1983) (Friendly, J.) (internal quotation marks
omitted).
117. Id. at 961.
118. Id. Indeed, “Defendants’ own Compliance Report revealed noncompliance
with 22 of 39 applicable standards in this area . . . .” Id. at 962.
119. Id. at 961.
120. See FED. R. CIV. P. 37(d).

2012] OVERSHARING: FACEBOOK DISCOVERY 65
comply with a legitimate request can be ordered by the court to
comply. 121 And if the party persists in refusing to permit the
requested discovery, the court can issue a wide variety of
potential sanctions under Rule 37 and its state analogs. 122 A
court can direct that the contested facts be taken as established,
prohibiting the nonresponding party from supporting or
opposing claims or defenses or introducing certain matters into
evidence, strike pleadings, stay further proceedings, dismiss the
action, enter a default judgment, or hold the party in
contempt. 123 Nor is this list exhaustive; Rule 37 gives a court
facing a recalcitrant party power to issue “further just orders” as
it sees fit. 124 But what all of the enumerated sanctions have in
common is that they are all aimed at forcing the party to
voluntarily provide the requested discovery. No specifically
identified sanction permits the court, for example, to order a
U.S. Marshal to seize the evidence or deputize a private party to
collect it. 125 The underlying principle of the enumerated
sanctions—that their aim is to encourage voluntary
compliance—likely cabins the court’s discretion to issue
“further just orders” under Rule 37(b)(2)(A) under the principle
of ejusdem generis. 126
There is a reason why such procedures do not exist under
the federal or state rules. Discovery, like much of civil
procedure, is built on a foundation that includes the adversarial
121. See FED. R. CIV. P. 37(a)(3)(B).
122. See FED. R. CIV. P. 37(d)(3).
123. See FED. R. CIV. P. 37(b)(2); see also N.Y. C.P.L.R. 3126 (McKinney 2005)
(court may make “such orders with regard to the failure or refusal as are just,” including
orders that issues be deemed resolved, prohibiting parties from supporting or opposing
claims or defenses or introducing certain evidence, striking pleadings, staying proceedings,
dismissing the action, or entering default judgment); PA. R.C.P. NO. 4019(c) (sanctions
include: orders providing that matters be taken as established; refusing to allow party to
support or oppose claim or defense or introduce matters in evidence; striking pleadings;
staying further proceedings; and entering judgment, contempt, or “such order with regard
to the failure to make discovery as is just”).
124. See FED. R. CIV. P. 37(b)(2)(A).
125. There are certain, limited circumstances where this is possible. See, e.g., 15
U.S.C. § 1116(d)(1)(A), (d)(9) (2006) (allowing seizure by federal or state lawenforcement
officials of counterfeit items and records related to their manufacture, sale, or
receipt); 17 U.S.C. § 503(a) (2006) (same for infringement of copyrights).
126. See, e.g., Harrison v. PPG Indus., Inc., 446 U.S. 578, 588 (1979) (“Under the
rule of ejusdem generis, where the general words follow an enumeration of specific items,
the general words are read as applying only to other items akin to those specifically
enumerated.”).

66 ARKANSAS LAW REVIEW [Vol. 65:39
process. That process is typically justified as a means for
enabling the judicial system to determine the truth among
contested facts and claims; the theory is that the truth is best
served by allowing each party to vigorously present its
arguments and defend its own interests before a neutral arbiter.
But the controversies over discovery of social-networking
information reveal another justification for the adversarial
process: it protects the parties’ privacy, not only from their
opponents, but also from the state (in the form of the court) and
the public (in the form of the jury). 127 The ordinary procedure
of discovery, in requiring that a party be able to review material
prior to production for relevance and privilege, helps to limit the
privacy harm from what is otherwise a very liberal discovery
process. It is of course true that if material is clearly relevant
and important, the mere fact that it is private will not shield it
from production. 128 But while a wide variety of materials might
be relevant and discoverable in a given lawsuit, the ability of a
party to limit discovery to what it itself affirmatively produces
prevents the discovery process from intruding even further into
irrelevant, burdensome, or privileged materials.
The orders permitting parties to gain complete access to
their opponents’ social-networking accounts thus violate this
fundamental protection provided by the rules of civil procedure.
Granting access to an account unnecessarily exposes irrelevant
or minimally relevant and highly sensitive material belonging to
the responding party, such as all photographs uploaded to the
account, posts about the party’s friends or children, posts about
the weather, complaints about politics, discussions of illnesses
not related to the suit, private communications with third parties
via private messaging, and a wide variety of other materials.
But the harms go further than that. Allowing an opposing party
access allows opposing counsel, at least, to view the same sorts
127. See, e.g., Hickman v. Taylor, 329 U.S. 495, 512 (1947). In Hickman, the Court
was concerned with an attorney’s privacy in his or her own thoughts and impressions, id. at
510-12, but as an attorney is merely an agent for his or her client, the more serious invasion
to be guarded against is unnecessary intrusions into the client’s privacy.
128. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 30 (1984) (“[T]he Rules often
allow extensive intrusion into the affairs of both litigants and third parties.”); Faragiano v.
Town of Concord, 741 N.Y.S.2d 369, 369 (App. Div. 2002) (diary ordered produced);
Sgambelluri v. Recinos, 747 N.Y.S.2d 330 (Sup. Ct. 2002) (wedding video ordered
produced).

2012] OVERSHARING: FACEBOOK DISCOVERY 67
of materials from all of the party’s friends as well. As one
Canadian court explained, noting the need for restrictions on
production, a person’s account “include[s] blogs and e-mails
entirely authored by third parties who are not involved in this
litigation, which, in some cases, pertain exclusively to their own
lives. Photos of these unrelated individuals are also included
among the materials sought.” 129 For that reason, the court
concluded, “all the documents would have to be carefully
reviewed to ensure that only relevant materials were produced
and that the privacy rights of these third parties was
respected.” 130
Most egregious are those orders in which the courts have
required parties not only to grant access to their socialnetworking
accounts to opposing parties, but to produce the
usernames and passwords for those accounts. 131 Such orders are
particularly burdensome for several reasons. In addition to all of
the concerns raised above with respect to opposing counsel
having unfettered access to a party’s account, turning over the
user’s username and password raises significant security issues.
A person with a party’s username and password can log in to the
party’s account posing as the party and create untold mischief,
such as sending spurious messages. Although this would create
risk for the imposter, tracking the miscreant down would be
difficult and would probably require multiple subpoenas. Even
worse, a user is likely to use the same login information on
multiple sites. 132 That means that when a court orders
production of a party’s social-networking username and
password, it is also likely forcing the party to disclose his or her
bank, credit-card, or email-login information as well.
129. Kent v. Laverdiere, 2009 CanLII 16741 (Can. Ont. Super. Ct. 2009).
130. Id.
131. See Gallion v. Gallion, No. FA114116955S, 2011 WL 4953451 (Conn. Super.
Ct. Sept. 30, 2011); Largent v. Reed, No. 2009-1823, 2011 WL 5632688 (Pa. Ct. C.P. Nov.
7, 2011); Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Ct.
C.P. May 19, 2011); McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD, 2010
WL 4403285 (Pa. Ct. C.P. Sept. 9, 2010). But see Chauvin v. State Farm Mut. Auto. Ins.
Co., No. 10-11735, 2011 U.S. Dist. LEXIS 121600 (S.D. Mich. Oct. 20, 2011) (affirming
denial of motion for production of username and password and award of sanctions).
132. See Kimberly Palmer, Zappos Customers: Change All Your Passwords, U.S.
NEWS & WORLD REP. ALPHA CONSUMER BLOG (Jan. 17, 2012), http:// money.usnews.com
/money/blogs/alpha-consumer/2012/01/17/zappos-customers-change-all-your-passwords.

68 ARKANSAS LAW REVIEW [Vol. 65:39
Indeed, logging in to someone else’s account to gain
information from it, even with the user’s acquiescence, may be
more than an invasion of the user’s privacy; it is conceivably
also a crime. Under the Computer Fraud and Abuse Act, it is a
misdemeanor to intentionally exceed authorized access to a
protected computer and obtain information from it. 133 A
“protected computer” is essentially any computer connected to
the Internet. 134 And several prosecutors and courts have taken
the position that it “exceeds authorized access” to access a
computer after having violated any contractual provision
governing its use, including form terms of service. 135 Facebook,
for example, prohibits its users in its terms of service from
sharing their passwords, allowing others to access their
accounts, or soliciting login information or accessing someone
else’s accounts. 136 Facebook users who obtain a password from
another user in violation of Facebook’s terms are therefore
arguably “exceeding authorized access” to Facebook’s servers,
and if they obtain information in doing so, thereby committing a
federal misdemeanor. 137
IV. CONCLUSION
The treatment of social-networking sites during discovery
is an example of Internet law in action: the application of an
existing body of doctrine to a profoundly new technological and
sociological set of circumstances. There may be valuable
lessons in how courts have responded to that challenge,
133. 18 U.S.C. § 1030(a)(2) (2006). Violation of § 1030(a)(2) is punishable by a fine
or imprisonment for not more than one year, or both. 18 U.S.C. § 1030(c)(2)(A) (2006).
134. See United States v. Drew, 259 F.R.D. 449, 456 (C.D. Cal. 2009).
135. See United States v. Nosal, 642 F.3d 781, 784 (9th Cir. 2011); United States v.
Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010); Drew, 259 F.R.D. at 456 (C.D. Cal.
2009) (finding prosecution’s theory void for vagueness).
136. Statement of Rights and Responsibilities, FACEBOOK (Apr. 26, 2011), http://
www.facebook.com/legal/ terms.
137. To be sure, there is a persuasive argument that it is incorrect as a matter of
either statutory interpretation or constitutional limits of due process to interpret the
Computer Fraud and Abuse Act as criminalizing violations of form user agreements. See
Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 MINN. L.
REV. 1561, 1562 (2010); Orin S. Kerr, Cybercrime’s Scope: Interpreting “Access” and
“Authorization” in Computer Misuse Statutes, 78 N.Y.U. L. REV. 1596, 1598-99 (2003).
The point here is simply that the matter is currently unresolved in the federal courts,
placing civil litigants at some nontrivial risk of criminal liability when they access an
account pursuant to court-authorized discovery.

2012] OVERSHARING: FACEBOOK DISCOVERY 69
particularly in those decisions that appear to have extended the
ordinary bounds of discovery when confronted with a novel
form of evidence. What can be learned from these cases?
First, judges and parties appear in some cases to be having
trouble fitting a new source of information into an existing legal
trope about how discovery is conducted and what objections are
proper. For example, it is well understood that paper documents
are obtained with a document request and that oral questions are
asked in depositions, and the forms for both asking for such
discovery and objecting to it are both deeply engrained and
rarely thought about. Confronted with issues arising from a new
source of information, however, lawyers and judges are forced
to consider what box to place those issues in. The courts
granting opposing parties access to accounts, and perhaps even
some of those denying access, appear to have placed all of the
issues in the “relevance” box—that is, is there relevant
information in the account? Almost certainly, in all of the cases
considered above, the answer to that question is yes—there is
likely to be relevant and discoverable evidence in the account.
But the answer to that question did not address another question,
one that rarely comes to mind: what is the proper method to
obtain that information? Just because the information is
discoverable does not mean that any conceivable method of
obtaining it is permissible. Similarly, judges, and attorneys for
both sides, appear in many cases to have confused what is
properly a dispute over the method of discovery with one of
whether some sort of privilege should bar discovery entirely.
Confronted with arguments from plaintiffs’ attorneys that their
clients’ social-networking information was privileged, courts
unsurprisingly rejected that assertion.
One advantageous result of the decisions granting access to
social-networking communications is that they have unwittingly
demonstrated the privacy-protective nature of the rules of
discovery, in particular those rules that preserve the adversarial
process. It is not often the subject of much sustained attention,
but it is plainly important how Rule 34 and the other discovery
rules say materials are to be obtained in discovery. It matters in
preserving some measure of privacy that it is the party’s own
attorney, and not the opposing party’s attorney or the court, that
combs through the party’s documents looking for responsive

70 ARKANSAS LAW REVIEW [Vol. 65:39
nonprivileged materials. This procedure for supplying the
action with factual evidence is only overridden in situations
where the need for unfiltered access to the evidence is
particularly compelling, such as a criminal investigation where
there is probable cause to believe the evidence exists in a certain
location.
A second lesson that may be drawn from the socialnetworking
discovery cases is in how judges conceive of private
information. Several courts, in considering motions to obtain or
compel discovery from social-networking accounts, appear to be
viewing the privacy interests at stake as minimal. For example,
several opinions cited the number of “friends” able to view a
Facebook account, often numbering in the hundreds, as
weighing against a privacy interest in the information. 138 But
this reflects an overly cramped notion of privacy widely held in
the judiciary, as well as, to some extent, society at large. The
theory is sometimes voiced that any fact that is disclosed to
anyone—that is known by more than one person—is not private
anymore. But no one actually lives their life that way. 139 In
fact, people disclose information about themselves all of the
time to friends, family, and coworkers that they fully and
reasonably expect to remain unknown by people outside of their
regular social circle. And that circle can be quite large. The
average adult knows approximately 1700 individuals. 140 A fact
known by all 1700 is likely not still private, but a fact known by
a considerably smaller subset of those individuals might well
stay within the confines of the individual’s social network,
which means in effect that fact is still private from the rest of the
138. See, e.g., Murphy v. Perger, 2007 CarswellOnt 9439, para. 20 (Can. Ont. Super.
Ct. J.) (WL) (“The plaintiff could not have a serious expectation of privacy given that 366
people have been granted access to the private site.”). The factual circumstances have
gotten more complicated, as Facebook now offers the ability to tailor the number of people
able to see any given post; complete access to an account might therefore reveal posts seen
by just one person as well as those visible to “friends of friends.” In addition, it has long
been possible to send private chat messages and emails through Facebook, which would
also be visible to someone with complete access.
139. See United States v. Jones, 132 S. Ct. 945, 954-57 (2012) (Sotomayor, J.,
concurring) (criticizing privacy as secrecy theory); SOLOVE, supra note 68, at 43-44
(criticizing privacy as secrecy theory).
140. Strahilevitz, supra note 68, at 974. As Strahilevitz points out, these are not
necessarily friends or even acquaintances, but persons an individual knows in any capacity.
Id.

2012] OVERSHARING: FACEBOOK DISCOVERY 71
world. 141 Since a social-networking account is almost by
definition comprised of individuals within one’s social network,
it can at least be said that there are privacy interests at stake in
ordering production, even if they are not so weighty as to defeat
the opposing party’s interest in discovering relevant information
in most cases. But they should certainly be enough to defeat the
discovery of irrelevant information.
It is also possible that courts and lawyers are having
difficulty in applying the rules of discovery to social-networking
sites for a much more prosaic reason: confusion over what
exactly constitutes a “document” on a social-networking site.
That is, the problem may simply be one of translation from new
technology to more familiar forms of media. It is possible that
some courts and lawyers are conceiving of the information
visible on a social-networking site as akin to an ordinary
website, in which a “document” is typically defined as a single
webpage. Once it has been shown that relevant information
exists in a document, typically the entire document must be
produced, absent redactions for privileged information, so that
the relevant information maintains its context. 142 In ordering
access to entire sites, courts may be thinking of socialnetworking
accounts as in essence single documents, or a small
number of documents. But the information on socialnetworking
sites is not constructed in the same manner that a
paper or even website document typically is. The information
available on a person’s Facebook “News Feed,” for example, is
an agglomeration of information from multiple sources and on a
variety of subjects, compiled in a bric-a-brac fashion over a
period of days, or if one scrolls far enough down, months or
even years. Each separate post concerns a discrete discussion,
initiated by the user putting the post on his or her wall, which is
then often the subject of contemporaneous comments from other
users on the same subject. It would make more sense in that
context to say that each post is a document; production of
responsive documents would therefore entail production only of
141. See id. at 974-75.
142. See Expert Choice, Inc. v. Gartner, Inc., Civil No. 3:03CV02234 (CFD)(TPS),
2007 WL 951662, at *5 (D. Conn. Mar. 27, 2007).

72 ARKANSAS LAW REVIEW [Vol. 65:39
the relevant posts and associated comments, not the entire
account. 143
Finally, the social-networking discovery cases pose a
significant policy question for Internet law as well. Socialnetworking
sites are unique in their ability to record and
preserve the activities, thoughts, and communications of
ordinary individuals, to an extent that few people aside from
celebrities have ever been subject to. Individuals involved in
lawsuits have always been subject to a duty to tell the truth
about themselves in depositions and at trial, and to produce any
relevant documents that they have. The difference now is that
such documents exist, and in quantity. There may, however, be
some unrecognized costs to making individuals more susceptible
to evidence—that is, more susceptible to the truth. The hard
question in the context of discovery of social-networking
information is just how burdensome the law should treat
production of such materials in conducting the balancing
required under Rule 26(b)(2)(C). Should it be viewed as more
burdensome to produce social-networking posts than other
relevant information about an individual, such as financial
information, tax returns, emails, letters, deposition questions
about their activities, and the like?
On the one hand, it could be argued that the burden is less
in producing tangible records, as individuals creating those are
more likely to take care not to reveal personal information that
they do not fully intend to disclose, whereas social-networking
posts are often generated on a whim. But that is contrary to the
general philosophy of the Federal Rules of Civil Procedure,
which is that the truth comes out through wide-ranging
discovery, not restricted discovery, a philosophy that many
believe benefits individual plaintiffs and small players. And it
may be contrary to the direction of society as well. Like it or
not, the increasing use and prevalence of data-generating and
data-recording devices such as computers, cameras, and the like,
is leading to better documentation of the lives of individuals that
is probably inevitable. While the private nature of social-
143. Cf. Desgagne v. Yuen, 2006 BCSC 955, para. 20 (Can. B.C. Sup. Ct. 2007)
(concluding hard drive is equivalent to a file cabinet, not a document, and production of a
file cabinet “in the hopes that there might be found a document in which an admission
against interest is made” is improper).

2012] OVERSHARING: FACEBOOK DISCOVERY 73
networking information should be a consideration in a Rule
26(b)(2)(C)(iii) analysis that defeats requests of truly marginal
importance, it is hard to argue that social-networking posts
should receive any greater protections than any other form of
sensitive information. And at the moment, there is no reason to
think that the existing procedures for discovery, properly
applied, are not up to the task.