New Facebook Discovery Decision: Another Defendant Shot Down

There have only been a few decisions in our state court system dealing with the discoverability of private Facebook postings in civil litigation. Today comes the first federal court decision, out of the Eastern District of New York.

Addressing an issue of first impression within the Second Circuit, Magistrate Judge William D. Wall shot down a request by Novartis Pharmaceuticals to procure the log-in information for a plaintiff to her Facebook and other social networking sites. Decision here, dated today: Davids v. Novartis

The case deals with plaintiff’s claim that she suffers from effects of osteonecrosis of the jaw and the defendants drug Zometa. Defendant Novartis, seeing a profile picture of the plaintiff on her Facebook page that it claimed showed her to be smiling, used that as a basis to demand “log-in information to all of her social- networking websites and a release allowing Defendant to obtain documents directly from those websites so that Defendant could inspect all documents that relate to her claim.” A copy of their letter-motion to the court is here: Facebook Demand

Magistrate Judge Wall denied the motion, writing that the defendant had failed in its burden to show “some factual predicate, like an individual’s public postings, from which the court could infer that relevant information exists on the individual’s private page.”

Even if the plaintiff was smiling in the photograph, which Judge Wall said “is not clear to the court, one picture of Plaintiff smiling does not contradict her claim of suffering, nor is it sufficient evidence to warrant a further search into Plaintiff’s account.”

Citing to the only New York appellate case on point, McCann v. Harleysville, which announced that standard (and which I discussed in November 2010), it was clear that this was a mere “fishing expedition” that amounted, according to the Court, “a suggestion that a Plaintiff should have to grant free access to all of her social media accounts for no other reason than she filed a claim against Defendant.”

There is one huge issue that lurks in the background of these demands, which relates to thousands of private documents; documents in the form of profiles, pictures, messages (both public and private), tweets, photos, etc. And that is, if a court thinks something might be discoverable, court personnel will actually have to sift through those documents during an in camera inspection looking to see what, if anything, should be disclosed. And this will be compounded by the other side then making similar requests. As a result of the court needing to do this fishing expedition itself, judges will set a high bar on litigants looking to explore the ocean of people’s lives looking for that little minnow.

Expect to see this decision widely cited in the future.

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  • Jordan 2012.2.27 at 16:36 | Quote

    I was going to write something about this same subject. The law is going both ways in Pennsylvania, though I think the courts are leaning towards what Judge Wall decided. Recently, a Philadelphia court decided something similar to what SDNY did.

    However, we some a family law cases (custody?) floating around where the parties had to turn over their Facebook credentials.

    My guess is that the courts will scrutinize disclosure of Facebook in PI cases, but be more liberal in custody cases. Seems like whether or not a Facebook account is dicoverable, and to what extent, could be very fact and matter specific.

    Unfortunately, perhaps the best bet is to tell clients not to post anything on Facebook while there is pending litigation. Which is a shame in personal injury cases, because someone who is injured might have to put their entire social media life on hold, adding more stress to an already bad situation…

  • Eric Turkewitz 2012.2.27 at 16:39 | Quote

    Recently, a Philadelphia court decided something similar to what SDNY did.

    That PA case was Largent v. Reed? If so, it is cited in the decision. There seem to be precious few of these types of cases out there yet.

  • Jordan 2012.2.27 at 19:32 | Quote

    @Eric Turkewitz

    We have a good bit of them here in Pennsylvania…

    Largent v. Reed, cited in the opinion, was out of Franklin County.

    We also have a case from Philadelphia – Martin v. Allstate Fire and Casualty Insurance Co., where Allstate’s motion to compel access to a Facebook page was denied. Unfortunately, the motion was denied without an opinion, though that isn’t out of the ordinary in Philadelphia discovery court. Discovery motions are usually decided on the spot at oral argument.

    Other Pennsylvania cases supporting a plaintiff’s right to privacy over a defendant’s right to take discovery are Arcq v. Fields and Piccolo v. Paterson (from Bucks County).

    There is also Kalinowski v. Kirschenheiter, where a trial court denied a motion to compel access to plaintiff’s social media sites, but also entered a preservation order.

    However, Zimmerman v. Weis Markets Inc. and McMillen v. Hummingbird Speedway Inc. stand for the proposition that “no privilege exists in Pennsylvania for information posted in the non-public sections of social websites, liberal discovery is generally allowable, and the pursuit of truth as to alleged claims is a paramount ideal.” The defense bar’s argument is that Facebook pages are relevant to a plaintiff’s quality of life and the statements were made in a public forum.

    The two most recent cases seem to favor privacy over a defendant’s right to information. That’s how I think it will trend, or at least that the defense will need to present something more than “I want to go on a fishing expedition.”

    However, it’s fair to say that the issue is currently unsettled. Some direction from an appellate court would be helpful on this issue, because it’s hard to give clients good advice when the answer isn’t clear.

    (What’s also unsettled here, at least last time I looked at the issue, was a party’s right to access another party’s hard drive. I doubt it would ever be an issue in a PI case – though it comes up a lot in will contests and commercial litigation.)

    Personally, I get the sense that people believe their Facebook, when set to “private”, is just that. It also seems terribly invasive for lawyers to have to tell their clients to cease any Facebook activity where they appear to be happy for fear it could be taken out of context…

    I’ll probably put something together in the next week or so discussing this issue as it pertains to Pennsylvania.

  • Lulaine 2012.3.5 at 15:49 | Quote

    All aspects of society will have to deal with the reality of social media. The balance that the two have to reach for society to continue functioning will always be a tough battle. That being said when a social media page is marked private, it should be under very dire circumstances that the courts should be able to access those records. It’s almost like having a piece of enclosed mail, the lawyers would have to show why its important before its opened. The same should be with social media especially if the owner goes through the hurdles of making it private.

  • marc 2012.3.8 at 17:28 | Quote

    I’m glad they weren’t give access to it

  • Eric Turkewitz 2012.3.8 at 17:38 | Quote

    I’m glad they weren’t give access to it

    Thank you for that deep analysis. I know my readers will appreciate the effort you expended.

  • Legal Advice 2012.3.13 at 20:02 | Quote

    The law is only beginning to appreciate the new landscape. I recently had a fellow lawyer client delete messages upon notice of an action. The deleted messages were brought to the attention of the state ethics board [Grievance Committee]. There are many things that are only now being fleshed out in the legal body politic.

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