Is Information on Facebook Subject to Discovery Requests? It Depends on Whom You Ask
One of the most important aspects of any civil lawsuit is the discovery phase, in which the parties request documents, ask questions, and take depositions of witnesses to establish the facts in the case before trial. In employment law cases, it is common for employees to request a wide range of information from their former employers. But because employees do not produce as much data and keep the same type of records as the companies they work for, the scope of discovery requests sent to employees is traditionally fairly limited.
With over 500 million active users, the popularity of Facebook and other online social networks has created a wealth of potentially discoverable information for employers. It is not unusual for employees to update their Facebook status once a day or more, use Facebook to communicate with coworkers, and post pictures to Facebook taken with friends from work. Over time, this type of daily use may result in a significant amount of discoverable information.
When an employee who is an active user of Facebook decides to sue his or her employer for allegedly violating a workplace law, information on a Facebook profile may be essential to the outcome of the case. For example, if an employee filed an Americans with Disabilities Act (ADA) claim alleging that she is disabled because of a back injury and that her employer failed to accommodate her condition, imagine the impact on the case if the employee’s Facebook page reveals that she works the night shift at a strenuous second job without accommodation. The Facebook information could sink her ADA claim.
Many employees are already wise to the privacy pitfalls of Facebook, so they have locked their accounts away from public view. Some supervisors may choose to friend employees on Facebook, thus gaining access to their profiles and raising a host of monitoring concerns (which exceed the scope of this article and are worthy of their own discussion). Once an employee initiates a lawsuit, the discovery process is the easiest way to obtain information from private Facebook accounts.
Despite the fact that Facebook has been popular for years, there are only a few court rulings that address the permissible scope of discovery requests involving Facebook and other online social networks. The following cases show how parties have succeeded and failed to obtain information posted on Facebook through the discovery process.
Facebook Users May Be Compelled to Respond to Discovery RequestsA recent court order in the case of EEOC v. Simply Storage Management, LLC provides an interesting look at how employers can use focused discovery requests to access the private Facebook profiles of their employees during litigation. In that case, the EEOC sued Simply Storage for sexual harassment on behalf of two employees. As part of the claim for damages, the EEOC alleged that the employees had suffered from depression and stress disorders because of the harassment. During discovery, Simply Storage sought a number of communications and updates from the plaintiff’s Facebook and MySpace accounts, including self-evaluations entitled “How well do you know me” and the “Naughty Application.”
The EEOC objected to these requests on the grounds that the production of material from the Facebook and MySpace accounts would not be relevant to the case and would violate the plaintiff’s privacy. The Court disagreed and made two important findings. First, it held that content on Facebook and MySpace is not shielded from discovery simply because it is locked or private. Second, the Court held that social media content should be produced during discovery if it is relevant to a claim or defense. Based on these findings, the Court in Simply Storage ordered the production of any content from Facebook or MySpace that could reasonably relate to the plaintiff’s mental or emotional state.
Requests Sent Directly To Facebook May Be Blocked By Federal Privacy Law
In 1986, Congress passed the Stored Communications Act, a law that prevents certain private electronic communications from being disclosed without authorization. Because the Stored Communications Act was enacted before the widespread adoption of the Internet, it can be difficult to predict whether the law applies to new technologies until a court rules on the issue. Until recently, no court had addressed whether the Stored Communications Act protects private information sent through online social networks.
Earlier this year, a federal court in California issued an important ruling that applied the Stored Communications Act to discovery requests for information on Facebook and MySpace. In Crispin v. Christian Audigier Inc., the plaintiff, an artist, sought information from the defendant’s Facebook and MySpace accounts to prove that artwork was used without permission. However, unlike in Simply Storage, the plaintiff in Crispin issued discovery requests directly to Facebook and MySpace. The Court denied these requests, holding that the Stored Communications Act prohibits Facebook and MySpace from disclosing private electronic communications, even in response to a civil subpoena. Because the defendants had communicated on these social networks using private accounts, federal law protected the messages. The ruling in Crispin is significant because it held that the Stored Communications Act applies to online social media networks like Facebook and MySpace when they receive discovery requests. We expect other courts to follow this rule in the future.
Proper Discovery Requests Pay Dividends
The lesson learned from Simply Storage and Crispin is that discovery requests for information contained on a Facebook or MySpace profile should be directed to the social network user, not Facebook or MySpace. The Stored Communications Act protects Facebook and other social media networks from most civil discovery requests. This rule makes sense because thousands of Facebook users could be engaged in litigation nationwide. If those Facebook users’ profiles are discoverable from Facebook, Facebook would need to devote significant time and resources to respond to such requests. In contrast, the burden on a party during discovery to produce his or her own Facebook or MySpace records is minimal. We expect to see more decisions like Simply Storage, in which courts require parties to produce their own Facebook or MySpace profiles during discovery.
What Should Employers Do?
Employers typically distribute “litigation hold” or “document retention” advisories to key employees when a charge of discrimination or lawsuit is filed, which instruct those employees to preserve relevant documents and electronic records. However, employers should consider also sending their own document retention advisories to plaintiffs and their counsel whenever the employer believes that helpful, discoverable information may have been posted on a Facebook or MySpace page. Such letters can greatly assist a spoliation-of-evidence argument if the plaintiff’s prior postings on Facebook or MySpace are allegedly gone or unavailable later. The Labor & Employment Practice Group at Troutman Sanders will continue to monitor developments in this important area of the law.