Facebook Discovery and the Unbearable Sameness of Internet Law

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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).
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Facebook Discovery and the Unbearable Sameness of Internet Law

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