Facebook. It’s for posting party pictures, catching up with old friends, and letting the world know what you ate for lunch (Safeway sushi for me, but you won’t find that information on my page). For many of us, our Facebook profile holds some pretty personal tidbits, which we share only with those thousand or so friends whom we chose to allow a virtual peep into our quasi-private lives. We’d rather not see these tidbits in Entry #47 of a District of Nevada PACER docket (though until it institutes photo tagging, D. Nev.’s PACER user base will continue to dwindle).
Nevertheless, many courts have given parties license to explore the Facebook pages of opposing parties. Recently, we saw yet another example of this in Thompson v. Autoliv ASP, Inc., No. 09-cv-1375, 2012 WL 2342928 (D. Nev. June 20, 2012).
The case concerned a car crash, in which Plaintiff Nicole Thompson allegedly suffered severe injuries when her airbag didn’t deploy. Nicole sued TRW Automotive U.S. LLC, the manufacturer vehicle’s SRS control unit, which controlled deployment of the airbag.
The dispute quickly started focusing on the discoverability of information on Nicole’s Facebook page. TRW had perused Nicole’s public-facing Facebook profile and had found material undercutting her claims of injury. According to TRW, such material depicted Nicole playing sports, dancing, consuming alcohol, partying, enjoying personal relationships, and offering to share medication with others. Based on these findings, TRW requested all material—public and private—from Nicole’s Facebook page. In response, Nicole objected and produced only redacted copies of her Facebook account history and a limited number of photographs. TRW moved to compel a full production.
The court granted TRW’s request, ordering Nicole to send TRW all recent information from her Facebook account. Noting, however, that litigation does not permit “a complete and open public display of Plaintiff’s life,” the court required TRW to keep the information confidential and provide a list identifying the material TRW believed to be discoverable. The court also set forth a procedure by which Nicole could challenge the discoverability of specific material.
I find this opinion neither surprising nor completely unreasonable. The American legal system overwhelmingly accepts the discoverability of relevant information, without much regard to privacy. Potentially discoverable sources of information include diaries, love letters, and now e-mails—all undisputedly fair game. Facebook represents merely a new frontier (and an extremely fertile one at that).
That said, I think the court’s order went a bit far. With respect to emails and other ESI, we generally accept that a producing party will turn over only relevant documents. For example, a litigant will typically search for and produce only relevant emails—not whole email accounts. With respect to documents deemed irrelevant or nonresponsive, the litigant will simply withhold them without notice. The court’s order in Thompson offered some protection, allowing Nicole to challenge the discoverability of certain material. But the order shifted the burden of challenge to Nicole, rather than simply allowing her to produce only relevant and responsive material. I don’t see why social networking accounts and other ESI should receive different treatment in this respect.
In summary, courts continue to recognize the importance and discoverability of Facebook and other social networking accounts. Consideration of these sources should become a standard part of your eDiscovery analysis. Now, if you’ll excuse me, I have some sushi to eat and some photos to tag.
Editor’s Note: The eDiscoveryJournal is happy to welcome our newest contributor Michael Fluhr. Mr. Fluhr is a litigation associate at the law firm of Carroll, Burdick & McDonough in San Francisco, CA. Michael’s eDiscovery experience runs the gamut from information management through production. He counsels large corporation on a variety of ediscovery issues, including the full EDRM spectrum, forensic analysis, foreign privacy law, and legal technology.