nications shared between friends on social networking sites is confidential, and
therefore protected against production.
The ultimate Order required the Plaintiff provide his Facebook and Myspace
user names and passwords to defense
counsel. The court went further and built
in an anti-spoliation order prohibiting the
plaintiff from taking any steps to delete or
alter existing information and posts on his
social networking sites. Finally, the court
dictated that only defense counsel has access to the accounts, and that the log-in
information should not be provided to
the parties directly. The Hummingbird
approach requiring forced password production has not been an anomaly.
Federal Rule of Civil Procedure 26
Privacy vs. Discovery
Other courts have recognized the defendant’s need for information on social
networking sites, yet have struck a balance
between the defendant’s need for discovery and the plaintiff’s privacy concerns. A
few weeks after Hummingbird, along very
similar reasoning, the court in Romano v.
Steelcase granted the defendant access to
the plaintiff’s social networking sites, but
did not explicitly require the plaintiff to
turn over passwords. In Romano, the defendant sought access to the plaintiff’s current and past Facebook and Myspace pages
on the grounds that the public portions of
the plaintiff’s profiles showed content that
was inconsistent with her claims for loss
of enjoyment of life. The plaintiff’s public
portion of her profile showed her smiling
happily outside the confines of her home,
despite her claim that because of her personal injuries she is largely confined to her
home. The court concluded that the presence of inconsistent information on the
public portion of the profile created a fair
inference that the private portions of the
profile also contained contrary discoverable information.
Like the Hummingbird Court, the
Romano Court acknowledged the superseding need of the defendant to have the
information contained on the social networking sites as without them, the defendant would be at a distinct disadvantage.
The Romano order required that the
plaintiff provide the with defendant access to her current and past Facebook and
Myspace pages, including all deleted and
relevant information. The plaintiff had to
The insurer and its counsel must know the proper procedures for procuring evidence through
social media sites. Most states follow the scope of discovery as set out in Federal Rule of
Civil Procedure 26. It is important to be familiar with this rule when seeking discovery of social
According to Rule 26, “unless otherwise limited by court order, the scope of discovery is as
follows: parties may obtain discovery regarding any non-privileged matter that is relevant
to any party’s claim or defense.” This includes the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity and location
of persons who know of any discoverable matter.
The court may order discovery of any matter relevant to the subject matter involved in the
action. “Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence,”
says Rule 26.
This rule also requires parties to meet early in the litigation process and
discuss discoverable electrically stored information and issues related
to it. During this initial meeting, parties will discuss what electronically
stored information will be relied on; how the information is stored;
in what form the information will be produced the accessibility of
the information; and issues related to privileged electronically
Having a handle on Rule 26, as well as keeping up-to-date
on current social media cases can make the difference
between a win and loss.
Source: www.law.cornell.edu and www.educause.edu
deliver to defense counsel a properly executed consent and authorization which
may be required by Facebook and Myspace,
permitting the defendant to gain access to
the pages, both past and present. While
this granted access to the material on the
pages, it was not an explicit order to compel
the discovery of the passwords themselves.
plaintiff continuing to ride motorcycles,
including a recently purchased one, after
the accident. There was also information
that he traveled via motorcycle to West
Virginia and Pennsylvania, and pictures
depicting the plaintiff hunting, along
with postings indicating that he may have
recently ridden a mule.
Pursue What is Relevant
Still, a third approach uses in-cam-era review of the parties Facebook and
Myspace accounts. In Offenback v. L.M.
Bowman Inc., the plaintiff claimed to
have suffered shoulder and lower-back
injuries leading to a limited ability to
stand, sit, bend, push and pull after the
collision. Additionally, he claimed the injuries limited his ability to ride his motorcycle which led to a decreased sociability
and lack of intimacy. Previously, the court
had been provided the password and log-in information directly for the review and
concluded that very little of the plaintiff’s
Facebook account was relevant to the
case before the court and not likely to
lead to the discovery of relevant evidence.
However, the court did find some information in the profile relevant within
the meaning of Rule 26(b), including
photographs and postings showing the
A De Facto Standard?
Not all courts are embracing the production of evidence on Facebook and
other social networking sites. In Piccolo v.
Paterson, defense counsel filed a motion
to compel after learning from the plaintiff during her deposition that she had a
Facebook page. When defense counsel
attempted to access the page, it became
evident that the page was set to “private.”
Counsel then demanded that the plaintiff
accept its “friend request.” However, counsel for the plaintiff successfully argued
that at the plaintiff’s deposition she was
only questioned about photographs, several of which had already been provided
and there was no assertion that the textual
posting on the Facebook page would likely
lead to the discovery of material evidence.
The judge denied the motion.
In Arcq v. Fields the court also denied
defense counsel’s Facebook discovery re-