You know what the “E” in email stands for, right?
Just because someone has their online social media profiles and Tweets on “Private” so that their boss, LinkedIn contacts, and Aunt Becky can’t see embarrassing selfies and pictures of them at parties with cans of Bud Lite in their hand doesn’t mean that info is hidden if that person becomes involved in a legal battle.
Potentially anything you put online is subject to discovery, with different limitations.
It turns out that while people can keep Facebook pictures from their boss, Aunt Becky, and Linkedin, they won’t necessarily be able to prevent a court from asking them turn over online account credentials and posts to an opposing party during discovery in some unique cases. Luckily, this usually means that people only have to produce online materials that are relevant to the subject of the suit, not their account credentials.
Before I go any further, please note:
The Stored Communications Act (18 U.S.C. §§ 2701–2712) addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs). Thus, it’s outside the scope of this article. Also, third-parties responding to subpoenas are outside the scope of this article. This article deals with the ability of party-opponents in civil litigation to seek account information and other information put online by party-opponents as part of discovery. Account information and online information is information in a party-opponents possession. This is distinguished from a party going to Google or Comcast themselves for the opponent’s information, which would implicate the SCA. An earlier version of this article missed this critical note.
Further note: The rules of hearsay are outside the scope of this article. Yes, using a statement made online as proof of the matter asserted in the statement is hearsay. Many statements made on online by a party-opponent, however, could not be hearsay under F.R.E. 801(d)(2). The statement could also fit under one of the exceptions contained in F.R.E. 803 or 804, such as a then-existing mental, emotional, or physical condition (803(3)), recorded recollection (803(5)), etc.
You have little to no right to privacy in your “private” online information and posts
Almost every court dealing with these cases has squarely held that online accounts, including “Private” Facebook pages, are generally not privileged nor protected by any common law notions of privacy. But don’t fret.
This doesn’t necessarily mean anyone can request to see anything you’ve posted or gain complete access to your online accounts. This doesn’t change because you’re involved in litigation against them. Although online accounts can be relevant for discovery purposes in some cases and are not protected by any special privilege, the disclosure of online information (social media posts in particular) is often tempered by an understanding that some of the information could be embarrassing or irrelevant. Indeed, courts recognize that, just because you have put something on the internet, does not mean that you should hand over your credentials if requested as part of discovery.
The preliminary requirement of a discovery request is it must seek information “reasonably calculated to lead to the discovery of admissible evidence” (which is broad). In some state and all federal courts, the requested information must also be “proportional to the needs of the case.” These provisions, along with objections, temper the power of party-opponents to seek anything and everything from the other side.
Scope of online account/social media discovery power is uncertain
Discovery requests are often limited on other grounds. A request cannot be so overbroad as to be overly burdensome, oppressive nor cause annoyance or embarrassment (emphasis on embarrassment, amirite or amirite?). These rules, along with proportionality requirements, are why courts stop short of requiring people to give out their usernames and passwords to the other side in a dispute willy-nilly. That would be a fishing expedition.
“Fishing expeditions” are still generally off-limits
Several United States District Courts have suggested that requiring a party to hand over their username and password is akin to allowing someone to rummage through their entire file bin when they are only authorized to look for one file in the bin. (See Howell v. Buckeye Ranch, Inc., 2012 U.S. Dist. LEXIS 141368 at 3 (S.D. Oh. 2012).) This is because complete disclosure of usernames and passwords, although relevant, is not proportional to the needs of most cases.
Tempering fishing expeditions
A party must first show that the social media information they seek from the opposing party is relevant. I.e., if the opposing party has posted on Facebook or Google+ parasailing pictures despite claiming debilitating injuries, the discovering party would say to the court that they could get more relevant pictures by requiring disclosure of information posted to the parasailing party’s page.
Some courts have required complete disclosure of information online. Especially in some very rare cases where certain types of emotional damages are sought or a party outright refuses to comply with discovery requests. (See, e.g., Largent v. Reed, 2011 Pa. Dist. & Cnty. Dec., LEXIS 612, 2011 WL 5632688 (Pa. Ct. Com. Pl. 2011).)
Best practices to avoid complete disclosure of account credentials
The best practice to avoid discovery of credentials and online information is to when requested, make a good faith effort to provide all relevant online information that is not privileged or protected. The production should be certified by the producing party’s attorney. While someone giving the “keys” to their account usually isn’t proportional to the needs of most cases, it may be that there is some information that is proportional to the case and unprotected/unprivileged. That’s what parties should produce in discovery.
For example, in In re Milo’s Kitchen Dog Treats Consol. Cases, 307 F.R.D. 177 (W.D. Pa. 2015), Defendants sought an order to make the Plaintiff produce her entire Facebook data file without limitation. Defendants argued they were entitled to the complete production of Plaintiff’s Facebook data file because, before she filed her case, Plaintiff had blamed a party other than the Defendant in a Facebook post
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The court in Milo’s Kitchen decided that, because the Plaintiff had provided substantial information from her Facebook already, she did not have to hand over her credentials. She had even went above and beyond to provide material that was loosely relevant, with appropriate redactions.
Similarly, in Farley v. Callais & Sons, LLC, 2015 U.S. Dist. LEXIS 104533 (E.D. La. 2015), the Eastern District of Louisiana did not require the Plaintiff to share his credentials with the Defendant. The court also didn’t require Plaintiff to sign any authorization for the Defendant get the information from Facebook directly. Rather, the court directed that Plaintiff provide his lawyer all of his Facebook postings and his lawyer would decide whether they fit into one of the categories of discoverable posts laid out by the court. The court also required the Plaintiff to sign and provide a declaration to the Defendant that he had provided all social media information to his attorney (or access to it).
Compelled disclosure of online account credentials is rare
On some rare occasions, though, courts have ordered complete disclosure of parties’ online credentials.
These courts in some cases have required full disclosure of credentials when a party’s mental, physical, or emotional health was a major part of the case. At least one United States District Court has required disclosure of credentials when a party outright refused to provide any relevant online information to the other party.
A telling example is Appler v. Mead Johnson & Co. LLC, 2015 U.S. Dist. LEXIS 128182 (S.Ind. 2015), where the court granted the Defendant broad access to the Plaintiff’s Facebook account. The critical issue involved the Plaintiff’s ability to work during earlier portions of the day as a result of her narcolepsy. The court held the Plaintiff’s entire Facebook activity history discoverable. The Court held the information was relevant to the Plaintiff’s ability to work at different times of the day. The court solely omitted the Plaintiff’s credit cards, facial recognition data, IP addresses, phone numbers, family, and religious views from disclosure.
Similarly, in Largent v. Reed, cited above, the Plaintiff complained of a severe and debilitating injury. She refused to disclose any of her Facebook data, despite evidence of pictures on her Facebook showing she was “enjoying life with her family.” The Plaintiff argued that Facebook information was irrelevant and thus did not meet the threshold relevance requirement under the Pennsylvania Rules of Civil Procedure. The court found there was no reasonable expectation of privacy in information posted on Facebook. Making a Facebook page “private” did not shield it from discovery if the information sought was relevant. Further, the court said that Plaintiff’s bald assertions of embarrassment were insufficient and any annoyances would be remedied by the fact that the Plaintiff would be able to access her account during the investigation. Finally, the court reiterated that the Plaintiff had put her physical and mental health at issue and thus, had no privacy rights in the Facebook postings.
People have little to no privacy or other rights in their “Private” posts or other online information. Complete disclosure of account credentials is usually not proportional to the case. The Fourth Amendment is, of course, unimplicated.
If one side can show that the other party’s posts or information online is relevant, the best practice is for the requested party to disclose all material from social media that is relevant to the matter, with proper redactions, if needed.
It would be unwise for a requested party to completely deny giving any information because the court might then actually require the requesting side be given what it wants. Namely, the requested username, password, and unfettered access to all embarrassing conversations and pictures that Aunt Becky could only dream of. This is might occur in some rare cases or when a party absolutely refuses to attempt compliance with discovery requests. This circumstance is rare.
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Finally, if a party is claiming mental, emotional, or serious physical injury, then it is more likely that the court would compel disclosure of more information than if the case was a simple contract matter. In most cases though, a party can and should be able to argue there is slight need for credentials in proportion to the matter, however, if they’ve already done their part to produce relevant information.
This post illustrates why it’s best to leave your legal troubles for your lawyer and the courtroom, rather than the internet. In fact, many attorneys, for discovery and attorney-client privilege reasons will want you to sign a document saying you will not post about your case on any social media or the internet in general.
I am not a lawyer. This is not legal advice. I do not purport to be a substitute for the advice of counsel on any specific matter. For legal advice, you should consult with an attorney about your specific situation.
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Ryan Ullman is an attorney at the boutique law firm Spence | Brierley in Baltimore, Maryland. He is particularly interested in technology, productivity, peak flow states, music, and the outdoors.