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Privacy Settings Do Not Prevent Discovery of Social Media

While millions of Americans have become adept at managing their social network privacy settings to keep their postings hidden from the general public, individuals and companies involved in litigation should not expect those settings to shield information from discovery.  The recent trend among numerous federal and state courts has been to find that "[Social Networking Site] content is not shielded from discovery simply because it is 'locked' or 'private.'"  E.E.O.C. v. Simply Storage Management, LLC, 270 F.R.D. 430 (S.D. Ind. 2010).  While "privacy concerns may be germane to the question of whether requested discovery is burdensome or oppressive and...has been sought for a proper purpose...a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery."  Simply Storage at 434.  Several other recent cases have followed this same reasoning, including Romano v. Steelcase, Inc., 30 Misc.3d 426 (N.Y. Sup. Ct. 2010) (ordering access to plaintiff's Facebook and MySpace records); Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Penn. June 22, 2011) (ordering production of relevant information housed on Facebook after in camera review).

But fear not litigants, despite the general discoverability of electronic information in social media networks, courts have recently pushed back against requests seeking access to a party's entire social network profile.  In Tomkins v. Detroit Metropolitan Airport, 278 F.R.D. 387 (E.D. Mich. 2012) and Davenport v. State Farm Mutual Auto. Ins. Co., 2012 WL 555759 (M.D. Fla. Feb. 21, 2012), while noting that material on a private social networking page is not privileged or protected by common law or civil law privacy notions, the district courts found a litigant's entire Facebook page was nonetheless not subject to discovery by the defendant. Absent some indication of relevance in the plaintiff's publicly available postings, the defendant could not show that a search of the plaintiff's private Facebook information was reasonably calculated to lead to the discovery of admissible evidence.  Without requiring such a showing, "Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff's Facebook account. Tomkins at 388.

Attorneys seeking discovery of information stored on social media networks must take care to narrowly tailor requested information to comply with the relevance standards of Fed. R. Civ. P. 26(b)(1) and its state counterparts, or risk quashing of the requests by the court, and additional costs to the client for an unnecessary discovery battle.

Users, companies and organizations, shouldn't assume or expect that privacy settings on Facebook, Google+, MySpace and other social networking sites will protect information from discovery in litigation. Organizations and companies in particular need to include social networking information in their policies on information storage, and should include language relating to social networking in any litigation hold letters they issue in response to litigation. Information subject to discovery is also subject to spoliation.

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