Facebook Discovery and the Unbearable Sameness of Internet Law

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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).
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