Facebook Discovery and the Unbearable Sameness of Internet Law

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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.
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Facebook Discovery and the Unbearable Sameness of Internet Law

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