Wednesday, December 8, 2010

Discovery Granted: Give Opposing Counsel Your Facebook Password

In the Pennsylvania case, McMillen v. Hummingbird Speedway, Inc., the Jefferson County Court ordered the plaintiff to disclose his Facebook and MySpace passwords. Defendant requested the usernames and passwords for the social media sites in discovery. Plaintiff responded by claiming that such information was "confidential."

In Pennsylvania, we don't have e-discovery rules... we have discovery rules applied to electronically stored information. Generally, relevant information is discoverable unless it is privileged. The Court noted that the plaintiff could not identify any authority for the existence of a "social network site privilege." The Court did provide some helpful analysis examining whether to create such a privilege.

The Court placed particular emphasis on Facebook's privacy policy, including a clause that warns users that their friends may copy or store information thereby making the information subject to the friend's privacy settings. Additionally, the policy warns that Facebook itself may disclose information in some situations, including court orders and civil litigation requests.  Thus,
Facebook users are thus put on notice that regardless of their subjective intentions when sharing information, their communications could nonetheless be disseminated by the friends with whom they share it, or even by Facebook at its discretion.
Accordingly, the Court declined to create the "social network site privilege."

The Court then ordered the following:
[T]he plaintiff shall provide his Facebook and MySpace user names and passwords to counsel for Defendants [and] plaintiff shall not take steps to delete or alter existing information and posts on his MySpace or Facebook account.
This case provides further support for broad discovery of social media accounts (but see the Facebook Fishing Expedition case for a counter-example).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor & employment law practice groups.