Thursday, December 15, 2011

Social Media Discovery Request DENIED - COTW #71

Just last month, the Franklin County Court of Common Pleas here in Pennsylvania ordered a party to hand its Facebook password over to opposing counsel. Exactly one month later, on December 7, the same court issued another opinion on a motion to compel social networking information as part of discovery. But this time, the Court denied the motion.

The new case is Arcq v. Fields (HT: Volokh). So, what was different this time around? In the Court's own words:
We find that there lies one glaring, distinguishing factor that prevents us from [granting the motion]: Defendant's request is not the result of viewing the public portion of Plaintiff's profile.
The Court noted that requesting party seemed uncertain of whether the plaintiff even had the MySpace, Facebook, LinkedIn, and Twitter accounts he was requesting. The bottom line:
While it is not an absolute necessity that a plaintiff have a public profile before a defendant can be given access to the private portion, it is necessary that the defendant have some good faith belief that the private profile may contain information. Here, Defendant had no reason to believe so, therefore the Motion to Compel will be denied.
I think this case reminds us that social media discovery is ultimately just normal discovery, and the same principles apply. How the courts will apply those principles to social media moving forward remains to be seen.

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

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