Since our post about social media evidence admissibility received so much attention, we created a follow-up article focusing on the admissibility of private social media evidence.
As discussed in the first installment, social media evidence is admissible in court and may have a direct impact on the outcome of a case. In addition to evidence from public social media accounts being discoverable, evidence may also be discovered from non-public accounts.
Despite privacy settings that allow users to limit their audience, courts have unanimously held that social media users do not have a reasonable expectation of privacy.
This means that while SMI is unable to Export any information that is not public, you may still be able to get access to private social media content through the courts.
In Simms v. Lewis, the court held that the plaintiff could not maintain a reasonable expectation of privacy because the account and information posted were done so voluntarily, knowing that the information could become public.
Similarly, in Largent v. Reed, the court reasoned that there was no reasonable expectation of privacy because nearly all information posted on Facebook is shared with third parties. Additionally, in Tompkins v. Detroit Metropolitan Airport, the court reasoned that although a Facebook account was private, it was not protected by common law or civil notions of privacy since that page was still accessible by a selected group of recipients.
In order for information from private social media accounts to be discoverable, requested information must be relevant and reasonably particular.
Private social media evidence must be relevant
Discovery requests require that requested information lead to the discovery of admissible social media evidence. The Rules of Evidence requires that all evidence must be relevant and that the probative value of that information is not outweighed by unfair prejudice.
In Brogan v. Rosenn Jenkins and Greenwald, LLP, the court held that,
[a] party may obtain discovery of private Facebook posts, photographs, and communications only if electronically stored information is relevant, and the party may satisfy that relevancy requirement by showing that publicly accessible information posted on the user’s Facebook page converts or challenges the user’s claims or defenses in the pending litigation.
The Brogans argued that relevancy was satisfied because defendant Breault failed to identify a party that he communicated with via Facebook’s messages as a friend. However, the court recognized that two Facebook users may exchange messages without being “friends” and that the Brogans did not offer any other relevant reason to access Breault’s private Facebook information. Since the request lacked relevancy, the Brogans were not entitled to their discovery request.
Similarly, in Simms, the court granted access to one of plaintiff’s accounts because it contained relevant information, but denied access to plaintiff’s other sites because defendant failed to show that they also contained relevant information.
The court in Zimmerman v. Weis Markets, Inc. cautioned that social media discovery should not automatically be allowed, and stressed the importance that the party seeking discovery of private account pages show how the page may contain relevant information.
Once the threshold for relevancy is met, the court may proceed to the next step.
If you get access, it may be limited
Courts are divided on requests for social media account usernames and passwords. Early Common Pleas decisions in Zimmerman and McMillen v. Hummingbird Speedway, Inc. have all required plaintiffs to give defendants Facebook usernames and passwords once the relevancy requirement was met. However, such access may be limited. Later Common Pleas decisions in Largent, Prescott v. Willis, and Gallagher v. Urbanovich, all required parties to provide account usernames and passwords, but limited how long the moving party could have access. In Largent, access was permitted for 21 days, while Prescott and Gallagher limited access to only 7 days.
You can’t go fishing in someone’s account
Generally, requested information must be described with reasonable particularity.
Tompkins states that a party does not have a right to “rummage at will through information that another party has limited from public view.” The particularity requirement prevents parties from fishing for any information that may be relevant.
There is a growing trend to deny username and password requests for being overbroad and lacking in particularity, or to restrict what may be accessed. Tompkins held that a “request for the entire account, which may well contain voluminous personal material having nothing to do with this case, is overly broad.”
In Trail v. Lesko, the court denied both parties motions for access to Facebook pages, holding that such requests were unreasonably intrusive. In In re Milo’s Kitchen Dog Treats Consol. Cases, the court denied defendants’ request to access plaintiff’s entire Facebook account where Plaintiff already provided redacted information, stating that unfettered access was neither warranted nor would it provide any further relevant information.
Similarly, in Brogan, the Brogans sought the defendant’s Facebook account username and password in order to have unrestricted access. The court denied the Brogans’ request, holding that that the request was too broad because it would reveal “highly sensitive information and potentially confidential communications that have no relevance to this lawsuit.” The court further analogized that “carte blanche access to private social networking information is overly intrusive, would cause unreasonable embarrassment,” and would contradict rules of civil procedure.
Other courts take a moderate approach and restrict what may be accessed. In Offenback v. L.M. Bowman, Inc. the court permitted access to plaintiff’s Facebook account, but the court conducted a review of plaintiff’s Facebook on camera and decided what information was relevant. The court ordered plaintiff to produce this information to defendants, but limited defendants access to only this information.
Private social media account pages may restrict certain information from being publicly viewed; however, such accounts are not off limits from discovery requests if a moving party can show relevancy and, increasingly, reasonable particularity.