eDiscovery Case Law: Discovery Compelled for Social Media Content
November 09, 2010
Discoverability of social-media usage continues to be a hot topic for eDiscovery. Information for litigants’ LinkedIn, Facebook, Twitter and MySpace accounts can be the “smoking gun” for litigators looking to pursue or defend a claim.
In McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), defendant Hummingbird Speedway, Inc. sought to compel discovery of the plaintiff’s social network account log-in names, and passwords. A copy of the opinion granting that Motion to Compel is available here.
The plaintiff was allegedly injured during a stock car race in the summer of 2007. During the litigation that followed, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts – to which the plaintiff objected, arguing that the information was confidential. Based on information in the public sections of the plaintiff’s social network accounts, the defendant filed a Motion to Compel.
In his opposition to the motion, the plaintiff argued that communications with friends via social media sites were private and protected from disclosure. The court disagreed, indicating that the plaintiff was essentially asking the court to recognize an evidentiary privilege for such communications, but that there is no “social media privilege” recognized by Pennsylvania’s court or legislature.
The court also noted that those communications were not privileged based on “Wigmore’s test for privilege”, which requires the plaintiff to establish four factors:
- “His communications originated in the confidence that they would not be disclosed”;
- “The element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties”;
- “Community agreement that the relationship must be sedulously fostered”; and
- “The injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation”.
Because the plaintiff failed to establish these factors, the court ultimately ruled that “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit…and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted”.
So, what do you think? There have been other cases where the discoverability of social media was called into question – have you experienced any? Please share any comments you might have or if you’d like to know more about a particular topic.
P.S. – For those (like me) who didn’t know what the word “sedulously” meant, I’ve provided a link to the definition above… :-)
Great comments, Patti! It will be interesting to see how things develop and I would be interested to see if anyone is aware of any cases where social media content WAS ruled as privileged or confidential for discovery purposes.
There is always a possibility of accounts being hacked, though most SoMe providers can provide mechanisms to investigate the source of the information (e.g., IP address of the poster of social media content) to help the attributed source disprove that they were the actual source of the content. The possibility of hacking also applies to email accounts where certainly privileged and confidential communications often exist.
As the opinion states regarding Facebook, "reading their terms and privacy policies should dispel any notion that information one chooses to share, even if only with one friend, will not be disclosed to anybody else". "Facebook, in section 3, Sharing information on Facebook, Other, of its Privacy Policy, cautions users as follows:"
"Some of the content you share and the actions you take will show up on your friends’ home pages and other pages they visit."
"Even after you remove information from your profile or delete your account, copies of that information may remain viewable elsewhere to the extent it has been shared with others, it was otherwise distributed pursuant to your privacy settings, or it was copied or stored by other users. You understand that information might be reshared or copied by other users."
"When you post information on another user’s profile or comment on another user’s post, that information will be subject to the other user’s privacy settings."
I certainly would be hesitant to post anything confidential or privileged based on that policy.
Thanks again for your comments, Patti!
I think the disconnect is with the understanding of what is "private." The assumption that social networking sites are privated due to having an ID/Password isn't enough. But the real murky areas are when you using a social networking site to conduct truly specific communications with specified parties (not just a blast out to everyone). Then the understanding is that you ONLY intended Friend A and Friend B to see/read the communication. And said Friends understand this relationship by the method in which the communication was posted, respect the nature of the communication, and keep it "private" by their actions. Unlike a general declaration that is made available to a wide circle of connections, the private "chats" are assumed to be - well - private. But conducted in a public / social format throws an interesting curve into the debate. If I construct a conversation using the technology in such a way that it is NOT available to anyone but the intended recipient... isn't that the definition of private? BUT, if it is held in a SoMe site, don't I give up the right to assume privacy? I'm curious to see where this will head.
It appears to be going in the direction that anything 'on-line' is not private.
What I'm concerned about is the ability to hack / falsifiy a person's account and start posting things under their identity. Such as what appears to have happened here:
http://lnkd.in/upmUEh
Could something like this happen and later prove detrimental in a case, while the account owner swears the 'evidence' is the result of a computer hack? Or is it a blanket excuse to shift responsibility to unknown / untraceable parties?