It has become common for litigants to scour the Internet in search of evidence about an opposing party or witness. Increasingly, social networking sites such as Facebook and Myspace are proving to be a treasure trove of impeachment evidence for litigants, particularly in the practices areas of personal injury, workers’ compensation, and insurance coverage. Social networking sites are proving to be a low-cost, high-yield form of discovery that can produce incredibly damaging personal information of a party.
In Dexter v. Dexter, the mother in a bitter custody dispute documented on her Myspace page that she was a sadomasochist, bisexual pagan, who would consider drug use while her daughter was asleep and had in fact used drugs in the past. “Smoking gun” evidence like this has become the norm, not the exception. As long as the information sought is relevant or likely to lead to the discovery of relevant evidence, some courts have been willing to allow the discovery of a party’s social networking material.
The ultimate Order required the plaintiff provide his Facebook and Myspace user names and passwords to defense counsel. The court went further and built in an anti-spoliation order prohibiting the plaintiff from taking any steps to delete or alter existing information and posts on his social networking sites. Finally, the court dictated that only defense counsel has access to the accounts, and that the log-in information should not be provided to the parties directly. The Hummingbird approach requiring forced password production has not been an anomaly.
Privacy vs. Discovery
Other courts have recognized the defendant’s need for information on social networking sites, yet have struck a balance between the defendant’s need for discovery and the plaintiff’s privacy concerns. A few weeks after Hummingbird, along very similar reasoning, the court in Romano v. Steelcase granted the defendant access to the plaintiff’s social networking sites, but did not explicitly require the plaintiff to turn over passwords. In Romano, the defendant sought access to the plaintiff’s current and past Facebook and Myspace pages on the grounds that the public portions of the plaintiff’s profiles showed content that was inconsistent with her claims for loss of enjoyment of life. The plaintiff’s public portion of her profile showed her smiling happily outside the confines of her home, despite her claim that because of her personal injuries she is largely confined to her home. The court concluded that the presence of inconsistent information on the public portion of the profile created a fair inference that the private portions of the profile also contained contrary discoverable information.
Not all courts are embracing the production of evidence on Facebook and other social networking sites. In Piccolo v. Paterson, defense counsel filed a motion to compel after learning from the plaintiff during her deposition that she had a Facebook page. When defense counsel attempted to access the page, it became evident that the page was set to “private.” Counsel then demanded that the plaintiff accept its “friend request.” However, counsel for the plaintiff successfully argued that at the plaintiff’s deposition she was only questioned about photographs, several of which had already been provided and there was no assertion that the textual posting on the Facebook page would likely lead to the discovery of material evidence. The judge denied the motion.
In Arcq v. Fields the court also denied defense counsel’s Facebook discovery request, reiterating the issue in Piccolo, that there was nothing apparent to defense counsel that the production would likely lead to admissible evidence. Defense counsel argued that the plaintiff had put his medical, physical and mental conditions at issue in the case where at deposition he had testified that he was incapable of participating in certain activities after an accident. Defense counsel sought via interrogatory the “username and password to any social networking website to which plaintiff belongs.”