Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute — Zimmerman v. Weis Markets, Inc.

[Post by Venkat Balasubramani]

Zimmerman v. Weis Markets, Inc., CV-09-1535 (Pa. Ct. Common Pleas; May 19, 2011)

Courts continue to struggle with the discoverability of social network evidence in civil cases and the logisictal problems posed by these discovery disputes. In this case, the court orders the plaintiff to turn over his Facebook and MySpace passwords to defendant.

This was a personal injury case where plaintiff sued Weis Markets for injuries he suffered on the job. Weis Markets had a contracting relationship with plaintiff’s employer. Plaintiff sought damages for physical injuries, but also for “suffering, scarring and ’embarrassment’.”

Weis Markets reviewed the publicly available portions of plaintiff’s Facebook and MySpace pages and discovered a bunch of clearly relevant evidence: (1) photographs of the plaintiff with a black eye, before and after the accident; (2) photographs of the plaintiff wearing shorts, which he claimed he was too embarrassed to do because of the accident, and (3) the fact that plaintiff listed “ridin” and “bike stunts” as interests.

The court weighs plaintiff’s privacy arguments and finds that they are insufficient to overcome defendant’s need for the requested information. Quoting Romano v. Steelcase, the court notes that refusing the discovery request would:

condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.

The court also relies on the fact that Facebook’s terms do not guarantee privacy (regardless of what Facebook may say):

It is well publicized that Facebook’s privacy policy and its revisions have been the subject of criticism and controversy that may be never ending. One need only “Google” search the terms “Facebook privacy” for an exhaustive list of . . . articles on the topic.

Ouch! The court also drops in a warning to social networkers everywhere that the details you share with your social circle are not magically off-limits in litigation:

By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge. With the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.

The court orders plaintiff to turn over his log-in information for all MySpace and Facebook accounts and also orders plaintiff to not delete or alter “existing information and posts” on those accounts.

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I don’t have a good solution to the logistical problem posted by this discovery dispute, but I’m convinced that forcing a party to hand over his or her log-in information is not the correct result. Problems with this approach are legion, starting with the fact that the party seeking discovery will undoubtedly be exposed to irrelevant, non-discoverable information that may be private, intimate, or embarrassing. There’s a chance that attorney/client privileged communications can be exposed. There’s the possibility that the party who gets access to the profiles may alter or delete information unwittingly, or change settings. Then there’s also the thorny Stored Communications Act issue, which prevents the party from seeking any private communications directly from the social networking site by means of a subpoena. Is court ordered disclosure of the log-in information an end-run around the Stored Communications Act?

Interestingly, in the criminal context, a district court is currently considering whether a defendant can be compelled to reveal a decryption password. (“DOJ: We can force you to decrypt that laptop.”) Whether the government can force you to reveal your encryption password depends on different standards than those applicable to a civil discovery matter, but there are still interesting parallels.

A better approach is to generate some sort of inventory of the page, similar to a privilege log. Of course, this runs in to the problem that it relies on the good faith of the party who creates the inventory. An alternative is for the court to conduct in camera review. The court rejects that proposal outright here, saying that this would be “an unfair burden to place on the court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also require the court to guess as to what is germane to defenses which may be raised at trial.”

Finally, I’m not sure what to make of the court’s directive to the plaintiff to not alter or delete “existing information or posts” on his Facebook and MySpace accounts. I guess you could imply a “relevant to the dispute” limitation onto this, but the court does not include such a limitation here, and it’s overly broad for the court to order the plaintiff to not delete or alter any of the content in his accounts.

Additional coverage:

Pa. Court Finds Facebook Posts to be Discoverable Evidence

Previous posts:

Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act — Crispin v. Audigier (June 2, 2010)

Judge Offers to Facebook ‘Friend’ Witnesses in Order to Resolve Discovery Dispute — Barnes v. CUS Nashville (June 9, 2010)

Deleted Facebook and MySpace Posts Are Discoverable–Romano v. Steelcase (Sept. 29, 2010)

Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case — McMillen v. Hummingbird Speedway (Oct. 24, 2010)

Plaintiff Can’t be Forced to Accept Defense Counsel’s Facebook Friend Request in Personal Injury Case — Piccolo v. Paterson (May 19, 2011)

Court Conducts in camera Review of Plaintiff’s Facebook Page to Resolve Discovery Dispute — Offenback v. Bowman (June 24, 2011)