Facebook Discovery and the Unbearable Sameness of Internet Law

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.