Over the past five years, Facebook has evolved from a scrappy web upstart to a worldwide phenomenon with more than 500 million members. Even outside the social sphere, Facebook has also become a force in professional communities, and was the subject of the year’s most engaging film, The Social Network. But when it comes to law, the jury is still out on Facebook, as state courts continue to debate whether information gathered on Facebook should be admissible during the discovery process leading up to a legal showdown.
Last month, a New York appeals court denied a motion to access information on Facebook about a plaintiff who claimed physical and emotional damages. The plaintiff, the judge wrote in McCann v. Harleysville Insurance Co., “failed to establish a factual predicate with respect to the relevancy of the evidence,” calling the attempt a “fishing expedition.” This contradicted with a September decision (Romano v. Steelcase Inc.), in which the New York Supreme Court ruled that information from Facebook and MySpace was discoverable since such information could shed light on the plaintiff’s claim that physical and emotional harm left her unable to leave her house.
The issue has so far been equally confusing here in California. In 2009, a California appeals court ruled in Moreno v. Hanford Sentinel Inc., that one of the plaintiff’s MySpace posts was discoverable even though she deleted the post quickly after submitting it. This year, a district court quashed subpoenas seeking to access information from Facebook and MySpace under the Stored Communications Act in Crispin v. Christian Audigier Inc. A definitive law regulating social media discovery has not yet been determined in either New York or California.
In September, I spoke with eDiscovery expert Diane Barry, who said that when it comes to Facebook, the new tech platform isn’t as difficult to navigate if put in terms of regular legal ethics. In her own words:
From an attorney ethical point of view, consider the hypothetical where a party opponent has a Facebook page. Can you friend them to get a closer look at their information? The answer is that you can look at someone’s public profile, but you cannot friend them to get a closer look. Sending a “friending” request is contacting a party opponent. If I know they have counsel I cannot friend them or ask someone to friend them to get a closer connection to their page. It’s contacting a party represented by counsel. It’s the difference between driving by someone’s house and walking up and knocking on their door. You are allowed to do a Facebook drive by but you may not knock on their door and ask for a closer look.
Of course, Barry was not speaking specifically about eDiscovery in this segment. As we’ve seen through the examples in California and New York, the use of Facebook in the discovery process will be determined on a state-by-state basis. My hunch is that as Facebook and other social media platforms become more integral to social and professional interactions, states that ban Facebook eDiscovery will appear more and more out of touch with the direction of technological progress.
Photo credit: Rutger de Moddertukker