Will a court grant a motion to compel and force a party to disclose his or her password for social media websites or webmail services such as Gmail or Yahoo?
In the world of civil litigation, the magic words during discovery are "reasonably calculated to lead to the discovery of admissible evidence." Courts tend to broadly construe this standard, so there is little that cannot be explored during a deposition or in a request for production of documents.
For example, in a personal injury case, it is quite common for the defense to obtain complete medical records for 10 years or more leading up to the incident, even if those records have absolutely nothing to do with the injuries claimed; e.g., a doctor's visit for a flu shot when the issue is a low back injury.
Will a court grant the same liberal interpretation for e-mail and social media log-in information? In Romano v. Steelcase, Inc., a state court in New York granted a motion to compel complete access to a plaintiff's social networking cites based in part because the plaintiff posted pictures of himself on a publicly accessible Facebook page. Of course, another New York state court held less than a year later that a demand to access social media is not carte blanche for a "fishing expedition." Carbollo v. City of New York.
The federal district courts seem to follow the same "fishing expedition" line of thought. In Potts v. Dollar Tree Stores, Inc. 2013 U.S. Dist. LEXIS 38795, 117 Fair Empl. Prac. Cas. 1352, the court recognized that information posted to Facebook is neither privileged nor protected by common law notions of privacy; however, "the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view . . . ."
In order to access the private portions of Facebook, the court held that there must be a preliminary showing "that the requested information is [wait for it...] reasonably calculated to lead to the discovery of admissible evidence." Ultimately, this is the same holding as Romano. As long as there is something indicating a party has posted discoverable evidence on private portions of social media, the opposing party has at least a good-faith argument for demanding access to it.
The take-away: don't go into the motion to compel hearing empty handed. Have some evidence (preferably lots of it) that the other side has posted relevant and possibly admissible things on social media. There are several ways to go about collecting this, but we'll save that for a later post.
In the world of civil litigation, the magic words during discovery are "reasonably calculated to lead to the discovery of admissible evidence." Courts tend to broadly construe this standard, so there is little that cannot be explored during a deposition or in a request for production of documents.
For example, in a personal injury case, it is quite common for the defense to obtain complete medical records for 10 years or more leading up to the incident, even if those records have absolutely nothing to do with the injuries claimed; e.g., a doctor's visit for a flu shot when the issue is a low back injury.
Will a court grant the same liberal interpretation for e-mail and social media log-in information? In Romano v. Steelcase, Inc., a state court in New York granted a motion to compel complete access to a plaintiff's social networking cites based in part because the plaintiff posted pictures of himself on a publicly accessible Facebook page. Of course, another New York state court held less than a year later that a demand to access social media is not carte blanche for a "fishing expedition." Carbollo v. City of New York.
The federal district courts seem to follow the same "fishing expedition" line of thought. In Potts v. Dollar Tree Stores, Inc. 2013 U.S. Dist. LEXIS 38795, 117 Fair Empl. Prac. Cas. 1352, the court recognized that information posted to Facebook is neither privileged nor protected by common law notions of privacy; however, "the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view . . . ."
In order to access the private portions of Facebook, the court held that there must be a preliminary showing "that the requested information is [wait for it...] reasonably calculated to lead to the discovery of admissible evidence." Ultimately, this is the same holding as Romano. As long as there is something indicating a party has posted discoverable evidence on private portions of social media, the opposing party has at least a good-faith argument for demanding access to it.
The take-away: don't go into the motion to compel hearing empty handed. Have some evidence (preferably lots of it) that the other side has posted relevant and possibly admissible things on social media. There are several ways to go about collecting this, but we'll save that for a later post.
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