There is a new decision on the issue of whether litigants are permitted to obtain facebook account information during discovery. New York Judge George Silver of the Manhattan State Supreme Court, presiding over a car-acciddent / brain-trauma personal injury case, ruled that the defense was not permitted to obtain current and historical MySpace, Facebook, and Twitter account information from the plaintiff Katherine Sterling. The Court called the discovery requests an unjustified “fishing expedition” (although the Court did allow the defense to obtain the plaintiff’s cell phone records).
What is interesting about the case is that the ruling came after an in camera submission to the court of the plaintiffs’ Facebook page — apparently the Court assessed the nature of the first few pages of the Plaintiff’s Facebook page and determined that there was nothing worthwhile on the site that satisfied the relevance/”calculated toward the discovery of admissible evidence” test.
The Sterling case presents some unique issues. As any attorney probably knows, the value of receiving a multitude of records similar to the kind that resides on Facebook, MySpace, or Twitter, can be huge. Often, there is no “smoking gun,” but when the activities on chronological or timeline-based records are compared to other records, inconsistencies could be uncovered that may ultimately prove to be very valuable to the defense. The problem is that a single gold nugget of information could be buried deep within many pages of records. If the Sterling Court only looked at the first few pages of records (there is no telling from the Court’s Order how recent, frequent, or abundant the Facebook entries were), there is every likelihood that the page could have been littered with social postings, events, family musings, and other information completely irrelevant to the kind of discovery pertinent to a lawsuit. Records are not valueless or undiscoverable simply because they are abundant, or even mostly uninteresting.
Further, there is the potential for litigants to take advantage of “in camera” inspections of Facebook pages, especially once requested by the defense. A party who has received a request for production of such information can often collect a plethora of comments, posts, likes, and other activity, which can drown out legitimately useful facts, simply by being more “active” than usual on social networking sites — especially in the 30-90+ days it often takes for discovery disputes to escalate past a meet/confer, briefing, and hearing. By then, useful posts could be long gone or pushed back to page 10.
There is no doubt that Facebook info can be very valuable. Who can forget the case of Kevin Colvin, the celebrated intern at Anglo Irish Bank, North America, who told his manager he had to miss work for a “family emergency” … which turned out to be a “fairy” emergency:
From Kevin’s Facebook Page:
What Kevin was doing with the can of Miniwax hardwood stain in the background, no one may ever know.