Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina. I had the occasion, last week, to read her excellent article on her blog entitled "Jurists & Lawyers Ignorant of Social Media Can Unintentionally Harm Litigant’s and Clients." I thought that the article was so good that I asked Melissa if I could re-post it as a guest blog on this blog, and she graciously agreed. Her article is as follows:
In a lengthy opinion following a discovery motion in a personal injury case, Judge Richard Walsh of Franklin County, Pennsylvania ordered Plaintiff to disclose her login information for her Facebook account. Defense counsel had argued that Plaintiff had previously posted photographs and comments about her going to the gym and enjoying activities that she had previously testified under oath that she could no longer do as a result of the accident.
Apparently, at some point in the past, Plaintiff’s Facebook profile was “public” and accessible by defense counsel. On that basis, the judge granted defense counsel unfettered access to Plaintiff’s Facebook account. The judge wrote in a footnote, “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here, that has occurred because Jennifer Largent’s profile was formerly public. In other cases, it might be advisable to submit interrogatories and requests for production of documents to find out if any relevant information exists on a person’s online social networking profiles.” However, despite the footnote commentary, Judge Walsh ruled that Plaintiff has to give over her username and password for her Facebook account thereby granting defense counsel access to Plaintiff’s messages and chats that are never “public” or accessible except to the individual to whom such messages are sent. In addition, by allowing unfettered access to Plaintiff’s account, Judge Walsh’s ignored his own observations that defense counsel was only entitled to information that could lead to discoverable evidence. One has to wonder if Judge Walsh understood the overly broad nature of his order and if Plaintiff’s attorney tried to protect his client by arguing that such ruling was overly broad and intrusive.
This author only has access to the court’s order and knows nothing else about this case. However, it seems clear that Judge Walsh is unfamiliar with the multiple functionalities of Facebook. One wonders if he knew he was granting access to chat logs and private messages in addition to “publicly” posted information. One also wonders if Plaintiff’s own attorney possessed enough information about the various components of Facebook to object to the Court’s ruling as overly broad or to offer less intrusive remedies to permit access to properly discoverable information while still protecting his client’s private (and irrelevant) information.
Another Pennsylvania judge wisely crafted a much more narrow remedy for this problem. This past June 2011, Magistrate Judge Carlson, of the Federal District Court of the Middle District of Pennsylvania, struck a careful balance between the litigant’s rights to discover relevant information and the opposing party’s right to keep private, irrelevant matters private. Thus, unlike Judge Walsh who ordered a Plaintiff to hand over her user name and password, Judge Carlson ordered an in camera review of the Facebook page of the party’s Facebook page and then ordered disclosed only those items it believed could lead to discoverable evidence.
What is concerning is the general lack of knowledge within the Bar and the judiciary about other remedies that are readily available to address access to another party’s social media account. Judge Walsh could have issued a protective order that limited the use or dissemination of Plaintiff’s Facebook information or ordered in camera review by an independent third party.
Instead, Judge Walsh gave defense counsel a twenty-one day period in which defense counsel could rifle through Plaintiff’s Facebook account accessing all settings, messages, chat logs, photo albums, and the like. (While defense counsel, whom I do not know, is likely an attorney of the highest ethical caliber, Judge Walsh’s order contained no restrictive language to protect Plaintiff’s information and to prevent defense counsel from sharing it with others, including his own client.)
While I disagree with Judge Walsh’s overly broad order, I do agree that posts to one’s Facebook Wall could reasonably be considered public posts even if the account is restricted. Therefore, such “Wall posts” are and should be discoverable as noted by Judge Walsh. (My guess is that this is the only information Judge Walsh intended for defense counsel to obtain, but if he did not use or understand Facebook, he would not know that there is much more to Facebook than Wall posts.)
This flawed ruling is likely to happen again so be forewarned and do not let it happen to you if you are a litigant or to your client if you are the attorney. The best way to access historic Facebook data is to obtain information through the Facebook’s data downloader. Such records can easily be downloaded and then third parties could be ordered to review the information and remove any protected material or materials not likely to lead to discoverable information. This simple solution is not only less intrusive but is also likely to produce more accurate and admissible evidence.
In an era where many people think Mark Zuckerberg is starting to look a lot like the new J. Edgar Hoover because he keeps a record of every stray photo, comment, or poke ever posted by a Facebook user, lawyers must educate themselves and their clients about the realities of social media and advocate for their clients by keeping abreast of social media and other uses of the Internet. Lawyers who do not pay attention to how the world and their clients operate technology run the very real risk of losing not just cases and cash, but also their licenses to practice law.
Melissa’s article provides excellent information regarding this developing area of the law and piftalls attendant to it. I thank her again for allowing us to share it with our readers.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.