Social Networking Websites and Civil Discovery
by: Tim Blaine
The expansion of social networking websites, such as MySpace.com and Facebook.com, has further perpetuated the already borderless electronic world. Every day, millions of people post intimate details of their lives on the Internet without fully understanding the consequences of placing the information in the public domain. Although it is possible to restrict access to online profiles, many contain a surprising - often disturbing - amount of publicly accessible information including photographs, posted comments, videos, and much more.
In the legal context, these social networks have become an important and valuable discovery tool in personal injury and employment cases. A party's online social networking activity is discoverable if it is relevant to the subject matter involved in the pending action and it might reasonably lead to the discovery of admissible evidence. For example, if an injured plaintiff's MySpace page displays his participation in a sporting event or other physical activity subsequent to allegations of "restricted activity," the information can be used as evidence to impeach the plaintiff resulting in critical credibility implications.
Even though access to a profile may be restricted, the private contents of an individual's social networking website may be subject to the subpoena power of the courts and are discoverable if relevant to the underlying action. While several California courts have precluded discovery of online content under the auspices of Free Speech or the California Reporter Shield, (see e.g., Krinksy v. Doe 6 (2008)159 Cal. App. 4th 1154; O'Grady v. Superior Court of Santa Clara County (2006) 139 Cal. App. 4th 1423), there do not appear to be any published California decisions addressing the discovery of messages or other content posted on social networking websites.
Still one must tread carefully. At least one California court has quashed subpoenas seeking production of stored emails and communications and the identities of authors from online service providers. (O'Grady v. Superior Court of Santa Clara County, supra 139 Cal. App. 4th at 1451.) In a lengthy opinion, the court held that the Stored Communication Act (SCA), specifically 18 U.S.C. section 2702, prevented a provider from disclosing stored information unless the request could be brought within an exception and that a civil subpoena was not one of those exceptions. (Id. at 1446-47.) The court also held that the SCA did not permit disclosure of the identity of authors of stored messages when the disclosure of those identities effectively disclosed the contents of the communications. (Id. at 1447-1449.) The court acknowledged that there certainly were grey areas where the SCA protections may not apply such as where messages or content is posted by users. (Id. at 1449.) However, the court distinguished the sought after communications as "the stored private communications of known persons who openly posted news reports based on information from confidential sources." (Id.)
In Mackelprang, the Plaintiff, an employee of Fidelity, alleged she was sexually harassed by one of the company's vice-presidents. (Mackelprang v. Fidelity National Title Agency, Inc., 2007 WL 119149 * 7-8 (D.Nev)) The Defendant served a subpoena on MySpace.com to produce all records of the Plaintiff's two existing accounts, including her private email exchanges. Id. at *2. The court refused to grant Defendant's motion to compel a consent letter to Myspace for disclosure of records, but held that nothing in the order prevented "Defendants from serving such discovery requests on Plaintiff to produce her Myspace.com private messages that contain information regarding her sexual harassment allegations" in the lawsuit. (Id.)
Social networking websites, such as MySpace, Facebook, Orkut, or Friendster, give their users a false sense of privacy - users believe the incriminating details of their personal lives are tucked neatly away in cyberspace. However, a resourceful legal defense team, human resources manager, or insurance claims adjuster can use these sites to obtain valuable information regarding a claim. Whether it is a display of athletic prowess contradicted by allegations of restricted physical ability or romantically-crafted email messages incongruent with claims of sexual harassment, online social networking websites often contain a wealth of discoverable information that may give a client a significant advantage in a lawsuit. Valuable discovery is now just a few clicks away.