Facebook Discovery and the Unbearable Sameness of Internet Law

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42 ARKANSAS LAW REVIEW [Vol. 65:39 achieved without anyone fully realizing it. There is danger, then, in “Law of the Horse” cases; not the oft-cited danger of blindly staying the course in turbulent weather, but the more subtle risk of turning too abruptly away from the storm into uncharted waters. Social-media discovery is an example of the challenges of Internet law. Social media are part of a growing trend of the increasing documentation of the daily lives of individuals. 10 Through Facebook, Twitter, and other similar services, users can share a variety of materials with friends or acquaintances of their choosing, including tasteless jokes, updates on their love lives, poignant reminiscences, business successes, petty complaints, party photographs, news about their children, or anything else they choose to disclose. Users can broadcast such information to several hundred recipients at once, or send more targeted communications to particular friends. Thus, Facebook and its ilk allow an individual to self-report a more or less permanent record of his or her daily activities, and even his or her thoughts. Moreover, those thoughts are often unfiltered, since they are intended only for “friends,” and the idiom for social-networking posts seems to encourage sarcasm, humor, cynicism, or anger, none of which translate well into other contexts. 11 Ordinary individuals are just starting to come to terms with the implications of this, however. As business litigants have known for quite some time, such documents can prove a lucrative area for discovery in any dispute. 12 Individuals, too, have been surprised by the extent to which technology has changed the practical realities of litigation for them. Attorneys and courts have themselves made two sorts of errors in adapting to this new situation—one a “false negative” and the other a “false positive.” The first error sometimes made 10. See, e.g., Cindy Rich, Secret Life of Teens: “Coolest Thing Ever,” WASHINGTONIAN MAG. (Aug. 1, 2007), available at http://www.washingtonian.com/ articles/businesscareers/4903.html. 11. See, e.g., This American Life: Right to Remain Silent, Chicago Public Radio (Sept. 10, 2010), http://www.thisamericanlife.org/radio-archives/episode/414/right-toremain-silent (paraphrase of line from “Fight Club” as Facebook status update leads to arrest for making terroristic threats). 12. See, e.g., Scott Cohn, S&P Officials: We’d Do a Deal ‘Structured by Cows,’ CNBC.COM (Oct. 22, 2008), http:// www.cnbc.com/id/27321998/S_P_Officials_We_d_ Do_a_Deal_Structured_by_Cows.
2012] OVERSHARING: FACEBOOK DISCOVERY 43 by attorneys, and less frequently by courts, is in presuming that the procedures for obtaining discovery will work exactly the same for electronic documents, such as emails and socialnetworking posts, as they do for paper documents—that nothing has changed. In particular, parties who presume they can subpoena electronic documents from third-party Internet Service Providers (ISPs) may discover that federal law bars ISPs from complying with ordinary pretrial subpoenas. 13 The party itself must be the target of such discovery. 14 But the more serious mistake is the opposite one—a presumption by courts and attorneys that the rules governing discovery of social-networking information in a civil dispute must be radically different from those governing paper documents. Courts are increasingly ordering parties to provide not just relevant documents responsive to an opposing party’s requests—an obligation that private parties in litigation unquestionably have, and which individuals are discovering to their chagrin—but also to provide opposing parties with unfettered access to their accounts. 15 That is, courts are ordering parties to provide access to all of their socialnetworking posts on any subject, related or not to the claims and defenses at issue in the lawsuit, apparently on the theory that because the posts are on the Internet, the normal rules of discovery do not apply. 16 As I argue below, ordering a party to provide another party with access to an entire account is an incorrect reading of the rules governing discovery. But it is intriguing to speculate as to why some courts are making this mistake. In part, it may simply 13. See 18 U.S.C. § 2702 (2006). For more, see infra Part II. 14. See 18 U.S.C. § 2702 (prohibiting a service provider from divulging the contents of a person’s electronic communication except in the allowable exceptions listed in § 2702(a)); see also In re Subpoena Duces Tecum to AOL, 550 F. Supp. 2d 606, 611 (E.D. Va. 2008) (holding that a party could not use a civil-discovery subpoena to circumvent the exceptions listed in the Privacy Act). 15. See, e.g., Barnes v. CUS Nashville, LLC, No. 3:09-cv-00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010). For more, see infra Part III.A. 16. See infra note 58 and accompanying text. For the most part, the courts ordering such access have been state courts. See id. However, the rules governing discovery in most states are fairly similar to those governing discovery under the Federal Rules of Civil Procedure. See infra note 34 and accompanying text. Furthermore, there is no reason to suspect that federal judges are somehow immune from whatever chain of reasoning is leading state-court judges to order over-production.
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Facebook Discovery and the Unbearable Sameness of Internet Law

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