Get Outta My Face[book]: the Discoverability of Social Networking Data and the Passwords Needed to Access Them

• Jurisdiction: United States,Federal
• Publication year: 2012
• Citation: Vol. 8 No. 2

Washington Journal of Law, Technology and Arts Volume 8, Issue 2Winter 2012

Get Outta My Face[book]: The Discoverability of Social Networking Data and the Passwords Needed to Access Them

Mallory Allen and Aaron Orheim(fn*)© Mallory Allen and Aaron Orheim

Abstract

Under what circumstances can a social network user be compelled to turn over his or her user identification and password in civil litigation? In three recent cases, courts attempted to answer this question with varied results. The New York Supreme Court Appellate Division refused to allow discovery of private Facebook information in McCann v. Harleysville Insurance Co. because the discovery request was not sufficiently tailored to reach discoverable information. Soon thereafter, the same court allowed discovery of similar material in Romano v. Steelcase, Inc. based on the level of publicity of the social networking account. In McMillen v. Hummingbird Speedway, Inc., the Pennsylvania Court of Common Pleas allowed discovery of private Facebook information based upon similar considerations as the Romano court. The McMillen court questioned whether the plaintiff should be allowed to block discovery by asserting an evidentiary privilege and determined that no reasonable expectation of confidentiality exists on social networking sites. The court determined that as long as a person's social network sites contain information relevant to the lawsuit, courts should allow litigants to utilize "all rational means for ascertaining the truth." This Article first summarizes the potential bases to prohibit discovery of social networking information and communication. It then examines the recent case law and identifies the level of protection courts are willing to afford social networking communication and the login information needed to access them in civil discovery.

Table of Contents

Introduction .................................................................................. 138

I. The Federal Rules of Evidence and Social Networking Discovery .............................................................................. 139

A. Discoverability and Relevancy ........................................ 139

B. Discoverability and Evidentiary Privileges ...................... 140

II. The Fourth Amendment's "Right To Privacy" and Discoverability ...................................................................... 142

III. Social Networking Sites' Terms of Service and Privacy Policies .................................................................................. 144

IV. McMillen v. Hummingbird Speedway, Inc. . ......................... 146

V. Romano v. Steelcase, Inc. . .................................................... 148

VI. Access Granted ..................................................................... 149

VII. Counterpoint-McCann v. Harleysville Insurance Co. . ....... 151

Conclusion ................................................................................... 152

Practice Pointers ........................................................................... 152

Introduction

As the popularity of social networking sites continues to surge, civil litigants increasingly demand disclosure of online communications. Opponents of broad social networking discovery have asserted several arguments as to why social media information should be protected from discovery. First, such requests are not relevant under Federal Rules of Civil Procedure ("FRCP") 34 and 45 and therefore not discoverable. Second, social networking information should be protected by an evidentiary privilege-akin to attorney-client privilege or marital privileges and inaccessible by opposing counsel. Finally, litigants sometimes argue that the Fourth Amendment affords some protection from unreasonable intrusions into their privacy.

In analyzing whether to order disclosure of online communications, courts have not only considered the above arguments, but have also looked at the social networking sites' terms of service and privacy policies. Those policies are relevant in determining whether users have a reasonable expectation of privacy in their online communications. Ultimately, few courts find a reasonable expectation of privacy because many sites warn that most information is not private.

This Article first summarizes the varying bodies of law that courts have employed in determining when social networking information is discoverable. Next, this Article looks at three recent decisions that apply one or more of the above rationales and shed light on the discoverability of social networking data and the credentials-i.e., the usernames and passwords-needed to access that data: McMillen v. Hummingbird Speedway, Inc., Romano v. Steelcase, Inc., and McCann v. Harleysville Insurance Co., all decided in 2010.

I. The Federal Rules of Evidence and Social Networking Discovery

A. Discoverability and Relevancy

Civil litigants attempt to protect social media communications from discovery in many ways, including arguments that the information is not relevant. However, under both FRCP 34- discovery directed at parties to the litigation-and FRCP 45(A)(1)(c)-discovery directed at non-parties-the bar for relevancy in the context of discovery is extremely low.(fn1) Although courts frame the judicial tests used to interpret these rules in different ways, all of these tests have a presumption in favor of discoverability.(fn2)

The most widely used test only requires that courts consider "whether or not evidence might be admissible, or reasonably calculated to lead to any evidence that might be found material, or relevant in determination of issues involved in proceeding."(fn3) The information sought need not be proven relevant, but only needs to "appear relevant."(fn4) Once this low threshold is met, the party resisting discovery has the burden to establish the lack of relevance. The resisting party must show that the information sought is of "such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure."(fn5)

B. Discoverability and Evidentiary Privileges

While most courts will find that online social communications are relevant, those communications may still be excluded from discovery if they are protected by an evidentiary privilege.

Evidentiary privileges, such as the attorney-client privilege or marital privilege, are a creation of the common law and are not explicitly provided for in the Federal Rules of Evidence.(fn6) Under the Federal Rules of Evidence, common law privileges are to be strictly construed.(fn7) Courts may recognize a new category of privileges, but to do so the claimant of the privilege bears the burden of proof and must meet a four-step test.(fn8) To establish a "social media communication privilege" litigants would be required to meet the following test:First, the claimant must establish that he or she divulged the communication with confidence that they would not be disclosed; Second, the claimant must show that the element of confidentiality is essential to fully and satisfactorily maintain the relationship between the parties; Third, the claimant must establish that there is community agreement that the relationship must be sedulously fostered; and Fourth, the claimant must show that the injury potentially sustained to the relationship because of the disclosure outweighs the benefit of correctly disposing of the litigation.(fn9)

If the claimant fails to establish the existence of any one of these four factors, the court will not recognize a privilege of confidentiality and, unless another exception applies, will require disclosure of the information sought by...