Friday, November 19, 2010

Facebook "Fishing Expedition" - COTW #16

Courts have generally been receptive to discovery requests pertaining to a party's social media accounts. For example, in my recent article on eDiscovery, I cite EEOC v. Simply Storage Management. In that case, the Court ordered a party to produce:
[A]ny profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) and SNS applications [from 2007 to the present] that reveal, refer, or relate to any emotion, feeling, or mental state, as well as communications that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state.
That's not unlimited access... but close!

This week's case of the week comes from a New York Appeals court. In McCann v. Harleysville Ins. Co. of New York, 10-00612, 2010 WL 4540599 (N.Y. App. Div. Nov. 12, 2010), the Defendant sought a motion to "compel plaintiff to produce photographs and an authorization for plaintiff's Facebook account information."

The motion was initially denied by the trial court. The appellate court agreed, concluding that:
[D]efendant essentially sought permission to conduct 'a fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence.
It wasn't a total loss for the defendant though. The appeals court reversed the trial court's entry of a protective order on the account, holding "the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff's Facebook account at a future date." So maybe defendant will get at that Facebook account after all, just not today.

Discovery issues are notoriously tricky and often the source of conflict amongst litigants. It should come as no surprise that when you mix in a new element of uncertainty, social media issues, the results may vary from court to court. Courts have broad discretion in applying vague rules and there is little precedent on things like Facebook discovery requests. The law surrounding these issues is just starting to develop so stay tuned!

HT: CJMcKinney via Twitter who tipped me off to Evan Brown's post on Internet Cases.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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