Facebook Discovery and the Unbearable Sameness of Internet Law

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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,
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Facebook Discovery and the Unbearable Sameness of Internet Law

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